An exit by the 83-year-old justice, one of the three reliable left-wing votes on the Court, would set up an opportunity for President Biden to select a replacement — a feat accomplished by former President Trump three times, as he appointed Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett in his single term in office.
NBC News was among the first to report the rumors:
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.
The White House responded to the reports, although it did not offer a confirmation. “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 social media. “We have no additional details or information to share from @WhiteHouse”:
Nonetheless, rumors are already beginning to swirl regarding potential replacements, one of those being federal Judge Ketanji Brown Jackson, who once served as a Breyer law clerk.
Breyer’s purported decision comes nearly a year after Democrats called for is retirement, contending he should step down before the Court heard blockbuster cases on issues such as gun control and abortion.
“You know I, it’s something that I’d think about, but I, I would probably lean towards yes,” Rep. Alexandria Ocasio-Cortez (D-NY) said when asked in June 2021 if Breyer should retire at the end of he term to allow Biden to appoint a liberal successor.
“But yes, you’re asking me this question, so I’ve just, I would give more thought to it but, but I’m inclined to say yes,” she added — a sentiment shared by Senators Sheldon Whitehouse (D-RI) and Amy Klobuchar (D-MN). When asked about the left’s retirement push in October 2021, Breyer said the calls did not “irk him.”
I’ll tell you. The truth, I think, is … you can always hope for your more mature self, which is there sometimes. And this is a country in which, and every day I see this in this document, but number one, it is called freedom of speech. That means freedom of thought, freedom of expression,” he said during an appearance on CNN’s New Day.
“It’s far from the worst thing in the world to have people say mean things or nice things or this thing or that thing about you,” Breyer continued. “And really, if you’re not prepared, of course, people will get upset about all kinds of things. That’s why we have this First Amendment. We have it there so people will say things that you might not like and that I might not like. That’s why it’s there.”
The reports of Breyer’s retirement follows the Supreme Court blocking President Joe Biden’s Occupational Safety and Health Administration (OSHA) vaccine mandate but upholding the Centers for Medicare & Medicaid Services (CMS) mandate on healthcare workers, although the court explicitly noted exemptions remain for religious or medical reasons. In both cases, Breyer voted alongside his liberal colleagues to uphold the mandates. ✪
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