Supreme Court

Stephen Breyer Is Retiring from the Supreme Court, Reports Say

Assuming Biden can replace him, the Court's ideological composition probably won't change much.


Associate Justice Stephen Breyer is planning to retire after 28 years on the Supreme Court, according to multiple news outlets. He informed President Biden of his decision last week, POLITICO reported. 

Breyer is currently the oldest justice on the Court, and the longest-serving member of the current liberal wing, which includes Justices Sonia Sotomayor and Elena Kagan. His record is not especially admirable from a libertarian perspective: in 2014, Reason's Damon Root described him as "a pretty reliable vote for the government" who has shown tremendous deference to both Congress and the police.

Like Justice Ruth Bader Ginsburg before him, Breyer has long faced pressure from progressive activists and pundits to time his retirement so that a Democratic president could appoint his successor—and a Democratic-controlled Senate could confirm them.

With the GOP poised to potentially take back the Senate in 2022, Biden currently has a small window in which to guarantee the appointment of a liberal justice. The 50 Democratic senators with Vice President Kamala Harris as the tiebreaker can confirm whomever Biden appoints, assuming that no one breaks ranks. Democratic Sens. Joe Manchin (W. Va.) and Kyrsten Sinema (Ariz.) have thwarted aspects of the Biden agenda in the past; there's no real reason to think they would prevent the president from replacing one liberal justice with another, though these are strange times.

Assuming that Biden is able to replace Breyer with someone of similar ideological predilections, the composition of the Court will remain relatively unchanged, with 6 Republicans and 3 Democrats.

Reason's Damon Root will have much more to say about Breyer's legacy in a forthcoming article.