On January 26th, United States Supreme Court Justice Stephen Breyer announced that he is retiring from the bench after 28 years, meaning that a new justice will be appointed for the third time in the last four years.
In a formal announcement at the White House, Breyer acknowledged the tendency to disagree while discussing the future of the "American experiment," stating, "It's that next generation and the one after that. 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."
Breyer, 86, was born in San Francisco, California, and attended Harvard Law, where he acted as an editor of the Harvard Law Review. Following his graduation, he clerked with former Associate Justice Arthur Goldberg, served as Special and then Chief Counsel in the U.S. Senate Judiciary Committee, and was appointed to the U.S. Court of Appeals in 1980 by President Jimmy Carter.
In 1993, Breyer was initially considered for the Supreme Court after the retirement of Byron White but was passed up for the late Ruth Bader Ginsburg. Breyer would get his second chance in 1994 after Harry Blackmun retired and was successfully appointed by President Clinton.
Breyer is considered one of the more pragmatic liberal justices and a notable opponent of the originalist method. The originalist method is a judicial theory that the Constitution should be interpreted narrowly based on the conditions under which it was written, as opposed to the theory that the meaning of the Constitution has changed over time. He is also well-known for infrequently issuing dissenting opinions but played a crucial role in many recent court decisions.
One of Breyer's most recent accomplishments was in 2016 when he authored the court's decision on eliminating a Texas law intended to close a large group of abortion clinics. His defense of abortion as a safe medical procedure symbolized a significant victory for women's reproductive rights.
Breyer's retirement comes after intense pressure from Democrats to step down due to his age and the desire to fill his seat with a younger Liberal justice. At the same time, the Democratic Party still holds the majority in both chambers of Congress.
Currently, the Supreme Court is composed of six Conservative judges and three Liberal judges, where the retirement of Breyer is not likely to affect this composition under a Democratic administration and Congress.
When asked about a replacement for Breyer back in February of 2020, President Biden controversially promised that "I'm looking forward to making sure there's a Black woman on the Supreme Court to make sure we in fact get everyone represented." This statement has received both praise and scrutiny.
While many applauded Biden's remark as a sign of commitment to increased diversity on the bench, opponents like Republican Senator Ted Cruz (R-TX) argued that the pledge is discriminatory, recently remarking that "Black women are what, 6 percent of the U.S. population? He's saying to 94 percent of Americans, I don't give a damn about you."
To fill the seat vacated by Breyer, a rough shortlist composed of three qualified candidates has emerged, all of them Black women.
Many consider 51-year-old Ketanji Brown Jackson the frontrunner, who currently serves in the U.S. Court of Appeals for the D.C. Circuit. The Harvard graduate has been a public defender and previously clerked for Justice Breyer.
The second candidate is 45-year-old Leondra Kruger, a California Supreme Court Associate Justice. She graduated from Yale and clerked for a former U.S. Supreme Court Justice, John Paul Stevens. With her extensive legal experience and more moderate judicial approach, she is regarded as a safer alternative that would cater to members of the Republican party.
The third leading candidate is 55-year-old J. Michelle Childs, a U.S. District Judge in South Carolina. Despite an impressive resume, Childs did not attend an Ivy League law school and has not clerked with a former Justice, which may impede her nomination. However, she has the ardent support of the U.S. House Majority Whip and Chair of the Congressional Black Caucus James E. Clyburn (D-SC) and Republican Senator Lindsey Graham (R-SC).
Other rumored candidates are 7th Circuit Judge Candace Rae Jackson-Akiwumi, Delaware Supreme Court Justice Tamika Montgomery-Reeves, and NAACP Legal Defense and Educational Fund President Sherrilyn Ifill.
There are various scenarios for how the timeline of appointing a justice plays out, but it is not yet clear what the intentions of Democratic legislators are. For example, party leaders could try to expedite confirming their preferred candidate, as Republicans did with current Justice Amy Coney Barrett. Alternatively, they could pursue a longer timeline that involves conferral with Republican leaders.
Nor is it evident which strategy will be deployed to appoint a new justice. In a statement given by Senate Majority Whip Dick Durbin (D-Il), he said that "I want this to be done in a fair and timely way," adding that "we have to go through a process of that is defensible to members of the Senate first and to the American people."
Appointing Breyer's replacement will likely be a closely-watched, intensely-scrutinized ordeal that could play out for at least the next few months. However, regardless of who is picked, the decision will likely set notable racial milestones for the Supreme Court and could open the door for increased diversity in the highest American court.
Editor in Chief's Note: Ketanji Brown Jackson has been announced as President Biden's nominee for Stephen Breyer's replacement.