WASHINGTON (CBS SF/AP) — Liberal Supreme Court Justice Stephen Breyer is retiring, giving President Joe Biden an opening he has pledged to fill by naming the first Black woman to the high court.
The 83-year-old San Francisco native has been a pragmatic force on a court that has grown increasingly conservative in recent years, trying to forge majorities with more moderate justices right and left of center.
The sources spoke on condition of anonymity so as not to preempt Breyer's eventual announcement. NBC first reported the justice's plans.
Multiple sources, including two White House officials and a senior Democratic congressional staffer, confirmed Breyer's intention to step down to CBS News.
White House press secretary Jen Psaki said the White House would have no additional information regarding Breyer's retirement.
"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," she tweeted.
Breyer has been a justice since 1994, appointed by President Bill Clinton. Along with the late Justice Ruth Bader Ginsburg, Breyer opted not to step down the last time the Democrats controlled the White House and the Senate during Barack Obama's presidency. Ginsburg died in September 2020, and then-President Donald Trump filled the vacancy with a conservative justice, Amy Coney Barrett.
Breyer's departure, expected over the summer, won't change the 6-3 conservative advantage on the court because his replacement will be nominated by Biden and almost certainly confirmed by a Senate where Democrats have the slimmest majority. It also makes conservative Justice Clarence Thomas the oldest member of the court at 73.
"In terms of the ideological makeup, this is not a big change," Professor David Levine of UC Hastings College of the Law told KPIX 5, saying the confirmation battle over Breyer's replacement may not be as contentious as the ones involving Barrett or Brett Kavanaugh.
As for the two Senators who've hit the brakes on Biden's domestic agenda, Levine said don't be surprised if they fall in line with their Democratic colleagues.
"Senator Manchin and Senator Sinema have gone along with the federal judges who President Biden has nominated," he said.
Gov. Gavin Newsom, a California senator and others reacted Wednesday to reports that U.S. Supreme Court Justice and San Francisco native Stephen Breyer is planning to retire from the bench.
Newsom thanked the alumnus of Lowell High School and Stanford University for bringing "core California values to our nation's highest court throughout his distinguished tenure, shaping impactful decisions to strengthen our democracy and change lives for the better."
The governor cited Breyer's critiques of the nation's death penalty system -- Newsom has suspended the use of capital punishment in California during his tenure -- as one of the ways he contributed to the cause of criminal justice reform.
U.S. Sen. Alex Padilla, D-California, said Breyer "has demonstrated his commitment to justice, fairness, and equality under law time and time again."
The alumni association from Breyer's alma mater in San Francisco also weighed in on the reports of his retirement.
Lowell Alumni Association president Kate Lazarus said, "The Lowell Alumni Association congratulates Justice Stephen Breyer, Lowell High School class of 1955, on an exemplary career in public service. He is an inspiration to countless Lowell alumni and San Franciscans. We are immensely grateful and proud of his long commitment to justice, fairness, and the rule of law."
Among the names being circulated as potential nominees are California Supreme Court Justice Leondra Kruger, U.S. Circuit Judge Ketanji Brown Jackson, prominent civil rights lawyer Sherrilyn Ifill and U.S. District Judge Michelle Childs, whom Biden has nominated to be an appeals court. Childs is a favorite of Rep. James Clyburn, D-S.C., who made a crucial endorsement of Biden just before South Carolina's presidential primary in 2020.
Often overshadowed by his fellow liberal Ginsburg, Breyer authored two major opinions in support of abortion rights on a court closely divided over the issue, and he laid out his growing discomfort with the death penalty in a series of dissenting opinions in recent years.
Breyer's views on displaying the Ten Commandments on government property illustrate his search for a middle ground. He was the only member of the court in the majority in twin cases in 2005 that barred Ten Commandments displays in two Kentucky courthouses, but allowed one to remain on the grounds of the state capitol in Austin, Texas.
In more than 27 years on the court, Breyer has been an active and cheerful questioner during arguments, a frequent public speaker and quick with a joke, often at his own expense. He made a good-natured appearance on a humorous National Public Radio program in 2007, failing to answer obscure questions about pop stars.
He is known for his elaborate, at times far-fetched, hypothetical questions to lawyers during arguments and he sometimes had the air of an absent-minded professor. In fact, he taught antitrust law at Harvard earlier in his professional career.
He also spent time working for the late Sen. Edward Kennedy when the Massachusetts Democrat was chairman of the Senate Judiciary Committee. That experience, Breyer said, made him a firm believer in compromise.
Still, he could write fierce dissents, as he did in the Bush v. Gore case that effectively decided the 2000 election in favor of Republican George W. Bush. Breyer unsuccessfully urged his colleagues to return the case to the Florida courts so they could create "a constitutionally proper contest" by which to decide the winner.
And at the end of a trying term in June 2007 in which he found himself on the losing end of roughly two dozen 5-4 rulings, Breyer's frustrations bubbled over as he summarized his dissent from a decision that invalidated public school integration plans.
"It is not often that so few have so quickly changed so much," Breyer said in a packed courtroom, an ad-libbed line that was not part of his opinion.
His time working in the Senate led to his appointment by President Jimmy Carter as a federal appeals court judge in Boston, and he was confirmed with bipartisan support even after Carter's defeat for reelection in 1980. Breyer served for 14 years on the 1st U.S. Circuit Court of Appeals before moving up to the Supreme Court.
His 87-9 high-court confirmation was the last with fewer than 10 dissenting votes. Breyer's opinions were notable because they never contained footnotes. Breyer was warned off such a writing device by Arthur Goldberg, the Supreme Court justice for whom Breyer clerked as a young lawyer.
"It is an important point to make if you believe, as I do, that the major function of an opinion is to explain to the audience of readers why it is that the court has reached that decision," Breyer once said. "It's not to prove that you're right. You can't prove that your right; there is no such proof."
Born on August 15, 1938 in San Francisco, Breyer's father Irving was a lawyer who served as legal counsel to the San Francisco Board of Education. Breyer graduated from Lowell High School in the city in 1955 and went on to study philiosophy at Stanford University, graduating with highest honors and membership in Phi Beta Kappa.
He attended Oxford, where he received first-class honors in philosophy, politics and economics.
Breyer then attended Harvard's law school, where he worked on the Law Review and graduated with highest honors.
Breyer's first job after law school was as a law clerk to Goldberg. He then worked in the Justice Department's antitrust division before splitting time as a Harvard law professor and a lawyer for the Senate Judiciary Committee.
Breyer and his wife, Joanna, a psychologist and daughter of the late British Conservative leader John Blakenham, have three children — daughters Chloe and Nell and a son, Michael — and six grandchildren.
His younger brother Charles is a senior judge of the U.S. District Court for the Northern District of California which is located at the Philip Burton Federal Building in San Francisco.
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