Justice Stephen Breyer will step down from the Supreme Court at the end of the current term, according to people familiar with his thinking.
Breyer is one of the three remaining liberal justices, and his decision to retire after more than 27 years on the court allows President Joe Biden to appoint a successor who could serve for several decades and, in the short term, maintain the current 6-3 split between conservative and liberal justices.
At 83, Breyer is the court’s oldest member. Liberal activists have urged him for months to retire while Democrats hold both the White House and the Senate. They contended that Justice Ruth Bader Ginsburg stayed too long despite her history of health problems and should have stepped down during the Obama administration.
Ginsburg’s death from cancer at 87 allowed former President Donald Trump to appoint her successor, Amy Coney Barrett, moving the court further to the right.
Prof. Erwin Chemerinsky, dean of the law school at the University of California at Berkeley, wrote in a Washington Post op-ed in May urging Breyer to retire that there are times “when the stewards of our system must put the good of an institution they love, and of the country, they love, above their own interests. They have to recognize that no one, not even a brilliant justice, is irreplaceable and that the risks presented by remaining are more than hypothetical.”
The progressive group Demand Justice, meanwhile, hired a truck last year to drive around the Supreme Court’s neighborhood bearing this sign: “Breyer Retire. It’s time for a Black woman Supreme Court justice.”
Biden has pledged to make just such an appointment. Among likely contenders are federal Judge Ketanji Brown Jackson, former Breyer law clerk, and Leondra Kruger, a justice on California’s Supreme Court.
After serving as a district court judge in Washington, Jackson was nominated by Biden for a seat on the U.S. Circuit Court of Appeals for the District of Columbia and confirmed by the Senate in mid-June. She succeeded Merrick Garland, who left the appeals court to become Biden’s attorney general.
President Biden said he would replace the justice with an African American female.