Justice Breyer Will Retire at the End of Term, Attention Turns to Confirmation of a New Justice

After almost 28 years on the court, Justice Steven Breyer will retire from the Supreme Court at the end of the current term (terms generally end in either June or July) under the assumption that his successor will have been confirmed by Congress by then. Although President Biden’s administration employed a “hands-off” approach in the lead up to Justice Breyer’s retirement, both out of respect and out of fear that applying pressure might backfire, the President now has the opportunity to make good on his pledge to appoint a Black woman to the highest court in the land. Yet, Breyer’s retirement also poses important questions for the future of the court, as Breyer was one of the more moderate liberal justices historically able to forge coalitions with conservative justices that lessened the ideological distance of the Court’s 6-3 divide.

Justice Breyer wrote numerous opinions of great importance throughout his time on the court, authoring opinions in three cases that were of major importance to abortion access, these being Stenberg v. Carhart, Whole Women’s Health v. Hellerstedt, and June Medical Services v. Russo. Breyer also emphasized the importance of stare decisis, which is the judicial practice of standing by previous decisions and precedent in the face of challenges, in stating that the overturn of Roe v. Wade would “undermine the court’s legitimacy beyond any serious question.” Breyer also wrote passionately on the death penalty, calling it into question on the grounds of its “‘serious unreliability,’ ‘arbitrariness in application’ and ‘unconscionably long delays that undermine [its] penological purpose.’”

Some observers of the court believe that should Mr. Biden appoint a justice more liberal than Breyer, less inclined to pursue coalition, the ideological divide of the court may solidify. Yet, it is important to note that during Justice Barrett’s first term on the court, Justice Breyer only voted in the majority in divided cases (these being cases not decided 9-0 or 8-0) 58% of the time, compared to Justice Kagan’s 55% and Justice Sotomayor’s 45%. This 58% rate represents Breyer’s second-lowest majority rate since 2012, which is not to say that he was growing more conservative as his career went on, but rather demonstrating the effects of the court’s current makeup.

After President Biden reaffirmed his pledge to nominate the first Black woman to the Supreme Court, worry that partisan gridlock and a divided Congress could hold up the confirmation seems minimal, so long as the nomination takes place prior to the midterm elections. This lack of alarm may seem surprising given that much of the Biden agenda has not been passed in Congress, despite the administration’s pursuit of voting rights legislation, sweeping infrastructure spending, and filibuster reform. Joe Manchin (D-WV) has become a major sticking point for the Biden administration, refusing to support the $1.75 trillion Build Back Better plan, a social spending measure. According to the White House, the bill targets several facets of life, including education, through a “universal and free” preschool program, climate change, by incentivizing the production of energy-efficient technology, and health care, through an expansion in Medicaid coverage. In its plan, the White House contends that the bill would be paid for by increasing taxes on the wealthiest individuals and corporations, as well as by the savings available after the repeal of the Trump-era tax policy. During a time when Americans are struggling, provisions like the extension of the Child Tax Credit and reduction of prescription drug prices seem as though they would alleviate some of American’s difficulties. Yet, Manchin’s decision to not support the bill, citing its price tag, likely means that Democrats will not be able to pass it in the Senate. Manchin refusing to join Democratic colleagues on key pieces of legislation is a factor that may be contributing to the Democrat’s “bad” mood about the upcoming midterm elections, where they face a tough challenge to hold their majorities. The opportunity to unify behind a singular cause and take part in a historical achievement is not only of paramount importance for the country but also for a Democratic Party that is reeling after a series of miscues in legislation.

Although Democrats in Congress have been struggling to unify over legislation, they have shared common ground when it has come to federal judge confirmations. Biden has nominated 42 federal judges during his first year, second only to President Kennedy. None of Biden’s nominees to the District Courts or Courts of Appeal were confirmed unanimously, with 24 judges receiving 40 or more “nay” votes. Had the filibuster rule for judicial nominees still been in place, the number of federal judges confirmed during the first year of Mr. Biden’s administration would have been much lower, given that there would have been 60 votes required to confirm a judge rather than a simple majority. The judicial filibuster was a rule that was changed originally in 2013 but remained in effect for Supreme Court nominees until 2017.  Republicans then removed the filibuster for nominees to the Supreme Court so that there would be no chance for Democrats to stop President Trump’s appointments. Mitch McConnell, at the Federalist Society’s 2018 gala, justified this by saying, “No Republican president could get the kind of nominee we’d want with 60 votes.”

The complete 50-vote Democratic unity that will be required for the confirmation of any Biden nominee to the court under this Congress has been on display during the previously mentioned District and Appellate Court appointments. Under the assumption that Mr. Biden can count on the unity of Democrats in Congress, names of front runners have begun to emerge, with NBC News reporting that likely contenders include U.S. Circuit Judge Ketanji Brown Jackson of the Court of Appeals for the District of Columbia and Leondra Kruger, who is a justice on the California Supreme Court. Jackson served as a United States District Judge between 2013 and 2021 before joining the U.S. Court of Appeals for the District of Columbia in the summer of 2021. Kruger, also supremely qualified, says that she attempts to “enhanc[e] the predictability and stability of the law and public confidence and trust in the work of the courts,” a characterization of the judiciary similar to that of Justice Breyer.

In her decisions on closely divided cases, Kruger has been known to side with both Democratic appointees and Republican nominees to reach both “liberal” and “conservative” decisions. Although it remains to be seen who Mr. Biden will decide to nominate ahead of the official retirement of Justice Breyer, Tom Goldstein, a Supreme Court advocate and author for Scotusblog, writes that given the strong possibility that Democrats may lose the Senate and the fact that Jackson was confirmed by the Senate in a 53-44 vote to the “breeding ground for Supreme Court justices” in 2021, her confirmation may be quicker. This is not to say, however, that there should be any considerable obstacles in confirming Kruger, rather that there is evidence to suggest that one confirmation could go without hindrance.

Joe Manchin stated a desire for a speedy confirmation process in recent remarks, saying that he is “anxious to get [it] done,” after alluding to the fact that confirmation could go quicker if a nominee was someone recently confirmed by the Senate. The fact that there seems to be unity in the Democratic Party for accomplishing something so historic is encouraging after watching inter-party squabbles hold up promising legislation for the American people. As 94% of the justices that have served on the Supreme Court have been white men, it is, as Mr. Biden has said, “long overdue” that a Black woman sits on the court.