Justice Stephen Breyer to Retire, Supreme Court Expert Breaks Down How the Court Will Change

Andrew O'Geen, Chair and Associate Professor of Political Science, is an expert on the dynamics of the Supreme Court, including the cooperative behavior of justices, the judicial review of federal laws and the dynamics of the Court's issue agenda.

What is Justice Breyer’s role on the court right now? How will it change in his absence?

At 83 years old, Justice Breyer is the oldest justice on the Court. He is also the second longest serving, after Clarence Thomas. (Note: Chief Justice Roberts is, technically, the most senior justice by virtue of his title. So, Breyer is second in length of service but third in seniority.)

Justice Breyer is a pragmatic liberal who is often associated with an interpretive philosophy that sees the Constitution and the law as fluid and adaptable to current circumstances; what some call a “living constitution.” This stands in stark contrast to the view of many of the conservative justices on the Court since Antonin Scalia, who often view the language of the Constitution and statutes as fixed. Throughout his career, Justice Breyer has been a reliable liberal voice but has also shown a willingness to side with his conservative colleagues on issues like accommodation of religion.

Assuming that the Senate will vote on and likely confirm a Biden nominee, the Court’s ideological composition is unlikely to change much. Given recent trends, the president is likely to nominate someone who is quite young (by Supreme Court standards). This may not only change the dynamic of the current Court but will also ensure that many of the Constitutional debates and disagreements that are present today may remain for some time to come. 

Is there any chance he won’t be replaced in a timely manner? 

There is always a chance that this would happen. Given that the Democrats control the Senate, it is difficult to imagine a significant delay. (Note: A simple majority – 51 votes or more – is required to confirm a Supreme Court nominee.) One possibility is that the president nominates someone who is widely perceived to be ideologically extreme (not just claimed to be, by Republicans) and pivotal Senators like Joe Manchin object. However, the president and his staff are well aware of the politics of the Senate and will most likely choose a nominee who strikes a balance between “confirmability” and fulfilling the ideological needs and expectations of the president.

What do you think of the timing of the announcement?

I gather that many think Justice Ginsberg should have retired four years earlier to give President Obama a chance to replace her. But Breyer is leaving with a lot of time left in the Biden administration. Is this just a simple case of retirement?  

I think it can be (and likely is) both sincere and calculated. Justice Breyer is in his early 80’s and most people don’t work that long. He started on the Court in 1994 and, by all accounts, enjoyed the work. However, I don’t think it is unreasonable to assume that he is ready to retire. That said, it would be naïve to think that the political position of the Democrats is irrelevant. Justices are individuals with political and ideological preferences and – to the extent that they have control over how their replacement is named – I think we should expect them to exercise some level of rational decision-making. For some justices, that means prioritizing their autonomy and for some, that means being strategic about the timing.    

How might the power balance of the Court shape the search for a successor?

President Biden has a lot of experience with the Senate and with the Judiciary Committee. I think we can expect him to nominate someone with impeccable credentials who is unequivocally liberal. However, despite how this person is likely to be characterized by Republicans, they are unlikely to be ideologically extreme. Any new justice will have to exist on a Court where the liberal bloc is a distinct minority. Nominating someone who will be immediately marginalized would not be wise. 

Aside from ideology, there is also the question of descriptive representation and diversity. President Biden has repeatedly committed to nominating the first Black woman to the Court. If he follows through on this commitment, the Court will look as diverse as it ever has.