Breyer plans to depart after Supreme Court term, successor’s confirmation

Justice Stephen Breyer on Thursday officially confirmed his upcoming retirement and gave new details on his exit, saying he plans to leave after the Supreme Court’s current term ends and after his successor has been confirmed by the Senate.

The details about the circumstances of his forthcoming departure came in a letter Breyer penned to President Biden that was made public moments before the two men delivered remarks at a White House event.

Breyer used the opportunity to express hope in the endurance of what he characterized as America’s long-running “experiment” in democratic governance.

“It’s an experiment that’s still going on. And I’ll tell you something, you know who will see whether that experiment works. It’s you my friend … It’s that next generation, and the one after that,” he said. “And of course, I’m an optimist, and I’m pretty sure it will.” 

The 83-year-old justice’s exit clears the way for Biden to deliver on a pledge he made during his 2020 presidential campaign — one he reiterated Thursday — to nominate the country’s first Black female Supreme Court justice. 

“The person I will nominate will be someone with extraordinary qualifications, character experience and integrity,” Biden said. “And that person will be the first Black woman ever nominated to the United States Supreme Court. It’s long overdue in my view.” 

Among the likely candidates to replace Breyer are Ketanji Brown Jackson, 51, who sits on the U.S. Court of Appeals for the D.C. Circuit; Leondra Kruger, 45, who has served on the California Supreme Court since 2014; and J. Michelle Childs, 55, a federal district court judge in South Carolina whom Biden recently nominated to the D.C. Circuit Court. 

Breyer’s letter to Biden, released by the Supreme Court press office prior to the White House event, provided new details on the timing and conditions that would guide Breyer’s retirement, which comes nearly three decades after he was nominated for the bench by President Clinton. 

“I intend this decision to take effect when the Court rises for the summer recess this year (typically late June or early July) assuming that by then my successor has been nominated and confirmed,” Breyer told Biden in his letter.

Breyer’s exit is consistent with the modern trend of Supreme Court justices stepping down when the White House is controlled by the party behind their nomination, a dynamic some legal scholars have referred to as “strategic retirement.”

Although the Supreme Court vacancy gives Biden a chance to fashion a younger and more diverse liberal bloc on the court, Breyer’s replacement will have little leverage to impede the steady march of the court’s six-member conservative majority.

In coming months, the court could issue rulings that expand gun rights, erode church-state separation and undermine the constitutional right to abortion first recognized in the court’s landmark 1973 decision in Roe v. Wade, and next term’s docket includes a dispute that could rein in affirmative action in college admissions.

Updated: 1:25 p.m.