Supreme Court Justice Stephen Breyer speaks as he announces his retirement in the Roosevelt Room of the White House on Thursday as President Biden looks on.
Andrew Harnik/APSupreme Court Justice Stephen Breyer formally announced his retirement Thursday. In a letter released by the court, Breyer said he intends to step down when the court begins its summer recess this year, "assuming that by then my successor has been nominated and confirmed."
At a White House event with Breyer, President Biden said it was his intention to name a nominee by the end of February, and that it will be a Black woman.
"Our process is going to be rigorous," Biden said. "I've made no decision except one: The person I will nominate will be someone with extraordinary qualifications, character, experience and integrity. And that person will be the first Black woman ever nominated to the United States Supreme Court. It's long overdue in my view."
Biden said he will invite senators from both parties, along with outside experts and Vice President Harris, to give their advice on the nomination.
Biden called it a "bittersweet" moment given he and Breyer "go back a long way." Biden met Breyer in the 1970s, when Biden was a member of the Senate Judiciary Committee and Breyer worked for Sen. Ted Kennedy, the panel's chairman.
In his remarks, Breyer said Biden's comments were "terribly nice."
Holding up a pocket copy of the Constitution, Breyer said that the U.S. was "an experiment," and that "it's still going on."
"My grandchildren and their children, they'll determine whether the experiment still works. And of course, I am an optimist, and I'm pretty sure it will," he said.
Those remarks, and his recitation of part of the Gettysburg address, were the quintessential Breyer, captured later in the day by Chief Justice John Roberts in a charming statement. Referring to Breyer as his "dear friend," Roberts praised the retiring justice for his 42 years of judicial service, 27 of them on the high court. His "pragmatism, encyclopedic knowledge and varied government experience have enriched the court's deliberation. And his fanciful hypotheticals during oral argument have befuddled counsel and colleagues alike," the chief justice said.
Roberts went on to note Breyer's "optimism and profound love of country," adding that he "is a tireless and powerful advocate for the rule of law — in the United States and abroad."
And then, Roberts said, "he is also a reliable antidote to dead airtime at our lunches, moving seamlessly from modern architecture to French cinema, to old radio shows, to a surprisingly comprehensive collection of riddles and knock-knock jokes."
Each of the other justices also released statements in a similar vein.
News of Breyer's retirement leaked Wednesday. His decision was long sought by liberals to give Biden the opportunity to nominate his first high court justice while Democrats control the Senate. During the campaign Biden pledged he would select a Black woman for the court.
In his letter to Biden, Breyer wrote that "I enormously appreciate the privilege of serving as part of the federal judicial system" and that he has found the work "challenging and meaningful."
"My relations with each of my colleagues have been warm and friendly. Throughout I have been aware of the great honor of participating as a judge in the effort to maintain our Constitution and the rule of law," he wrote.
Two leading contenders are Judge Ketanji Brown Jackson and California Supreme Court Justice Leondra Kruger
NPR has reported that two leading contenders are federal Judge Ketanji Brown Jackson, who was also on President Barack Obama's shortlist in 2016, and California Supreme Court Justice Leondra Kruger — who was the assistant and then deputy solicitor general in both Democratic and Republican administrations before she was nominated to California's highest court. Both women are younger — Jackson is 51 and Kruger is 45 — giving either the opportunity, if chosen and confirmed, to serve for decades.
A source familiar with the White House's thinking said the administration was also considering Judge Candace Jackson-Awikumi, who was nominated by Biden last year to serve on the U.S. Court of Appeals for the 7th Circuit, among others, in addition to Jackson and Kruger.
Breyer, nominated by President Bill Clinton in 1994, is, at 83, the court's oldest justice. Even if the Democratic majority in the Senate is able to confirm his successor, it will not change the conservative 6-3 majority on the Supreme Court.
Senate Majority Leader Chuck Schumer promised Tuesday that "President Biden's nominee will receive a prompt hearing in the Senate Judiciary Committee, and will be considered and confirmed by the full United States Senate with all deliberate speed."
Senate Minority Leader Mitch McConnell noted that looking ahead, "the American people elected a Senate that is evenly split at 50-50. To the degree that President Biden received a mandate, it was to govern from the middle, steward our institutions, and unite America." Biden, he warned, "must not outsource this important decision to the radical left. The American people deserve a nominee with demonstrated reverence for the written text of our laws and our Constitution."
NPR legal affairs correspondent Nina Totenberg contributed to this report.
The Supreme Court is the Nation's highest court. Eight Associate Justices and one Chief Justice comprise the membership of the Court. Like all Federal judges, Supreme Court Justices serve lifetime appointments on the Court, in accordance with Article III of the United States Constitution. In 211 years, there have been just 17 Chief Justices, and a total of 112 Justices have served on the Supreme Court.
The Constitution vests the Supreme Court with:
"The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under the Authority, to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." (Article III, Section I, United States Constitution)
When a vacancy occurs on the Supreme Court, the President of the United States is given the authority, under Article II of the United States Constitution, to nominate a person to fill the vacancy. The nomination is referred to the United States Senate, where the Senate Judiciary Committee holds a hearing where the nominee provides testimony and responds to questions from members of the panel. Traditionally, the Committee refers the nomination to the full Senate for consideration.
Supreme Court Nominations (1789-Present)
A Chief Justice Rejected, December 15, 1795
Impeachment Trial of Justice Samuel Chase, 1804-05
First Supreme Court Nominee Appears before the Judiciary Committee, January 28, 1925
Judicial Tempest, May 7, 1930
Supreme Court Nominee Refuses to Testify, October 1, 1949
Filibuster Derails Supreme Court Appointment, October 1, 1968
Published Wed, Jan 26 2022 11:56 AM ESTUpdated Wed, Jan 26 2022 8:12 PM EST
- Supreme Court Justice Stephen Breyer is retiring, NBC News reported, giving President Joe Biden a crucial opportunity to replace the liberal justice.
- Biden has vowed to nominate a Black woman to the bench.
- Breyer will retire as the 6-3 conservative majority court, including three nominees of former President Donald Trump, shows a willingness to wade into divisive cultural issues.
- The court's approval has sunk to new lows as the justices take up major cases on abortion, guns, religion and race.
Supreme Court Justice Stephen Breyer will retire at the end of the current term, giving President Joe Biden a crucial opportunity to replace the liberal justice, NBC News reported Wednesday.
Breyer, at age 83 is the oldest member of the court, was nominated by former President Bill Clinton and took his seat in 1994. His departure gives Biden a chance to fulfill his campaign promise to nominate a Black woman to the bench.
Breyer will retire as the high court, sporting a 6-3 conservative majority after the Senate confirmed three nominees of former President Donald Trump, shows a willingness to wade into divisive cultural issues and question long-standing judicial precedent.
U.S. Supreme Court Associate Justice Stephen Breyer is seen during a group portrait session for the new full court at the Supreme Court in Washington, November 30, 2018.
Jim Young | Reuters
Breyer is expected to step down at the end of the court's current term, NBC reported, citing people familiar with the decision. Biden is expected to act quickly so his successor can be ready to serve when the next term begins Oct. 3, according to NBC.
Republicans, who hope to regain a majority in the Senate, could throw a Biden nominee in jeopardy if they take control of the chamber in January and the seat is still open.
Democrats can confirm Breyer's successor with a simple majority in the Senate, which is currently split 50-50 between the two parties. Vice President Kamala Harris wields the decisive vote in case of a tie.
"It has always been the decision of any Supreme Court Justice if and when they decide to retire, and how they want to announce it, and that remains the case today," White House press secretary Jen Psaki said on Twitter.
"We have no additional details or information to share from @WhiteHouse," she tweeted.
Later Wednesday, Biden declined to comment on Breyer's reported departure, telling reporters, "Every justice has the right and opportunity to decide what he or she is going to do and say on their own."
"There has been no announcement from Justice Breyer, so let him make whatever statement he's going to make and I'll be happy to talk about it later," Biden said.
A spokeswoman for the Supreme Court did not immediately respond to CNBC's request for comment.
Some U.S. progressives, eager to at least preserve the three-seat liberal wing of the court, have pushed Breyer to step down quickly and allow Biden to nominate his successor while Democrats hold the Senate majority.
In interviews over the past year, Breyer appeared to chafe at these calls, while noting that he did not "intend to die on the court."
It's unknown whom Biden will pick as his nominee. In his first year in office, Biden nominated 62 women to the federal judiciary, including 24 Black women, a White House official told NBC.
His eventual candidate will likely facing a grilling from Republicans on the path to the court, which has become a scorched-earth political battlefield in recent years.
The court in this term alone has heard major cases on abortion, guns and religion — three perennially controversial topics in U.S. politics — even as its approval rating sinks to new lows.
Conservative justices appear poised to gut Roe v. Wade, the decades-old ruling that established the constitutional right to an abortion before viability. The high court also declined to block the enforcement of a strict Texas law banning most abortions after just six weeks, as activists and abortion providers in the state warn of an ongoing crisis for women's health.
This week, the court said it would consider lawsuits challenging universities that consider an applicant's race in admissions, a practice long decried on the right.
Breyer, known for his pragmatic approach to sticky legal questions, in the current term has reliably voted with the liberal bloc alongside Justices Sonia Sotomayor and Elena Kagan.
Senate Majority Leader Chuck Schumer, D-N.Y., in a statement said Breyer "is, and always has been, a model jurist."
"He embodies the best qualities and highest ideals of American justice: knowledge, wisdom, fairness, humility, restraint," the Senate leader said.
Biden's eventual nominee to succeed Breyer, Schumer added, "will receive a prompt hearing in the Senate Judiciary Committee, and will be considered and confirmed by the full United States Senate with all deliberate speed."
— CNBC's Christina Wilkie contributed to this report.
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