What does Justice Stephen Breyer’s retirement mean for the Supreme Court?

Stephen Breyer speaks during the 2008 Law School Commencement. Justice Stephen Breyer is retiring from the Supreme Court. Photo by Northeastern University

U.S. Supreme Court Justice Stephen G. Breyer, the court’s senior liberal jurist, is reportedly stepping down at the end of the 2021-2022 term. Breyer, 83, who was appointed by former President Bill Clinton in 1994, is the oldest justice on the court, and his retirement would give President Joe Biden a potential opportunity to make good on a campaign promise to nominate a Black woman to fill the seat. 

There are several candidates whose names have been circulating as potential nominees. They include Judge Ketanji Brown Jackson, of the D.C. Circuit, who is considered a leading candidate; Justice Leondra Kruger, of the California Supreme Court; and Judge Michelle Childs, of the South Carolina District Court.

Regardless of whom Biden picks to fill the vacancy, the balance of power will remain unchanged, with conservatives holding six seats to the liberals’ three. But the president’s nomination is sure to encounter resistance from Republican leadership in the Senate, who bent over backwards to ensure former President Barack Obama’s nominee, Merrick Garland, did not even receive a hearing to fill the vacancy created by the death of former Justice Antonin Scalia. 

Left to right: Jeremy Paul is a law professor who studies constitutional law and jurisprudence; and Martha Davis, university distinguished professor of law. Northeastern file photos

Still, it is unclear how the process will play out. But given that Republicans were able to usher in Justice Amy Coney Barrett in record time after the death of former Justice Ruth Bader Ginsburg weeks before the 2020 presidential election, it is unlikely that the Republicans will be able to stop Biden’s pick from going to a vote, says Jeremy Paul, professor of law and former dean of Northeastern’s School of Law. 

“As long as the Senate remains in its current state, it will be really difficult for the Republicans to slow down the confirmation process,” he says. 

Nominees need 51 votes in the Senate to be confirmed. Currently, the Senate is split evenly between Republicans and Democrats (including two independents who caucus with the Democrats), but Democrats have a majority because Democratic Vice President Kamala Harris casts the deciding vote in the Senate in the event of a tie.

Breyer’s decision to leave the court comes as the court faces questions of legitimacy given the tactics Republicans deployed to secure three additional conservative  seats in recent years. 

What Mitch McConnell did with Merrick Garland was unprecedented,” Paul says, “a politicization of the confirmation process unlike anything we’ve seen before.” Garland is now serving as U.S. attorney general.

A moderate liberal, Breyer has provided a key check against a majority-conservative court for most of his time on the bench. He has been a reliable defender of administrative agencies, deferring to their expertise; notably, he voted in the majority to legalize gay marriage in 2015, endorsed pro-choice positions on abortion, and wrote a majority opinion striking down an effort to overturn to the Affordable Care Act as recently as last term.   

Stephen Breyer speaks during the 2008 Law School Commencement. Justice Stephen Breyer is retiring from the Supreme Court. Photo by Northeastern University

Breyer is a big believer in what you might call pragmatic judging,” Paul says. “His thinking is you need to look at as many relevant factors as possible in a given case, ask a lot of questions, probing deep into the facts and weighing all of the pros and cons.” 

Breyer had been wrestling with the timing of his retirement for some time, noting over the summer that, “I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years.”

Paul says Breyer’s departure likely will pave the way for a completely different legal sensibility. 

It might be nice to have someone who is a member of a younger, different generation with greater sensitivity to the issues of the day,” Paul says. 

Appointing a Black woman to the court would represent a significant diversity milestone for the high court, says Martha Davis, university distinguished professor of law at Northeastern. 

But there is still “all kinds of diversity” missing, including picks who have graduated from law schools other than Harvard or Yale, Davis says. 

There are many excellent law schools around the country,” Davis says, adding “it’s also important to have justices who didn’t all have the same law professors.”

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