Justice Stephen Breyer Plans to Retire

February 10, 2022

After nearly 14 years as a Court of Appeals Judge and nearly 28 years as a Member of the Supreme Court of the United States, Justice Stephen Breyer formally announced his decision to retire from regular active judicial service. Justice Breyer, 83, plans to retire when the Court rises for the summer recess, creating an opportunity for President Joe Biden to name his first nomination to the Supreme Court.

The timing of Breyer’s decision to step down emphasizes the recent cycle of strategic political departures from the bench. Although Biden’s pick will not alter the ideological split of the court–assuming Breyer will most likely be replaced with a fellow liberal justice–it does allow the White House to nominate a much younger successor. Just eight days after Justice Ruth Bader Ginsburg died, former President Donald Trump nominated then 48-year-old Amy Coney Barrett. Thus, Biden’s appointment is expected to be one of the younger justices on the court and could ensure that Breyer’s vacated seat holds on the liberal side for decades to come.

Early discussions about Biden’s nominee coincide with his campaign pledge to nominate the first Black woman to the nation’s highest court. Some in the GOP have criticized Biden’s campaign pledge to nominate the first Black woman to the court, suggesting all nominees should be considered and attesting that his promise significantly narrows the field of candidates. However, Biden’s reiterated his pledge since running for the White House and seeks to make history by choosing a Black woman nominee.

Among top potential candidates to replace Breyer, is Judge Ketanji Brown Jackson. President Biden nominated Judge Jackson, 51, and she joined the U.S. Court of Appeals for the District of Columbia Circuit in June after being confirmed by the Senate in a 53-44 vote, mostly along party lines. Jackson is best-known for her 2019 ruling that former White House counsel Don McGahn did not have absolute immunity from having to testify in a congressional investigation of former President Donald Trump. Jackson also clerked for Breyer on the Supreme Court from 1999-2000.

California Supreme Court Justice Leondra Kruger is another contender. Kruger was nominated at the early age of 38 and has spent the last seven years as an associate justice on the California Supreme Court. Before becoming a judge, Justice Kruger worked at the Department of Justice in the Office of Legal Counsel as a deputy assistant attorney general and in the Office of the Solicitor General as an assistant to the solicitor general and acting deputy solicitor general. During her tenure under President Barack Obama, Kruger argued 12 cases before the U.S. Supreme Court.

U.S. District Judge Julianna Michelle Childs is also a potential candidate to succeed on the high court. Judge Childs, 55, spent more than a decade as a federal judge in South Carolina after being appointed by former President Barack Obama. This year, President Biden announced her nomination to the D.C. Circuit Court of Appeals. If selected by Biden, Childs would join a Supreme Court whose current membership includes eight graduates of Harvard or Yale law schools and one graduate of Notre Dame Law School. Notably, Child’s graduated from University of South Carolina School of Law and has been praised for her different educational background.

Lastly, Judge Candace Rae Jackson-Akiwumi was also in the first group of Biden’s judicial nominees. Judge Jackson-Akiwumi joined the Seventh U.S. Circuit Court of Appeals in Chicago months ago, after President Biden’s nomination. At the time of her nomination, she was a partner at Zuckerman Spaeder LLP and spent a decade earlier as a federal public defender. She represented hundreds of indigent clients accused of federal crimes ranging from fraud to gun charges.

Biden could choose to nominate someone who is not currently a judge; however, that seems unlikely. Importantly, Biden anticipates making a formal nomination before the end of February. Since Supreme Court nominees only require a simple majority of senators to vote for confirmation, meaning more votes in favor than against, there is little Republicans can do to block Biden’s nominee. The timing is crucial for Democrats because the Senate may flip to Republicans after November’s midterm elections. If all 50 Democrats holding seats in the Senate and Vice President Kamala Harris acting as a tie-breaking vote stay united, Biden’s pick will become the 116th justice of the Supreme Court of the United States.