Potential Twist: Breyer Wants Supreme Court Successor Confirmed Before Retirement Takes Effect


OPINION: This article may contain commentary which reflects the author's opinion.

A potential twist has emerged in Supreme Court Justice Stephen Breyer’s soon-to-be retirement from the bench.

Breyer officially notified Joe Biden of his intent to resign at the end of the court’s current term.

However, Breyer stated in a letter dated. Jan. 27 that he wants to have his successor lined up before he steps down.

“I am writing to tell you that I have decided to retire from regular active judicial service as an Associate Justice of the Supreme Court, and to serve under the provisions of 28 U.S.C. 371(b),” Breyer wrote, referring to the statute dealing with retired justices and their ability to continue collecting a salary.

“I intend this decision to take effect when the Court rises for the summer recess this year (typically late June or early July) assuming that by then my successor has been nominated and confirmed,” Breyer added in the letter.


Biden spoke Thursday afternoon from the White House, thanking Breyer and praising him as an “exemplary justice,” before addressing the matter of his replacement.

“Choosing someone to sit on the Supreme Court, I believe, is one of the most serious constitutional responsibilities a president has,” Biden said, stating that his “process is going to be rigorous.”

Biden then said he has reviewed some possible candidates and reiterated his campaign pledge to choose a Black woman.

“I’ve made no decision except one: The person I nominate will be someone with extraordinary qualifications, character, experience, and integrity, and that person will be the first Black woman ever nominated to the United States Supreme Court,” Biden said. “It’s long overdue, in my opinion.”

Biden went on to say that he will choose a new justice, “not only with the Senate’s consent but with its advice,” stating that he would hear ideas from senators from both parties, as well as attorneys, scholars, and Vice President Kamala Harris, whom Biden praised as “an exceptional lawyer.”

Following Biden’s remarks, Breyer spoke briefly about what he tells students when they ask what he loves about his job.


“It’s a kind of miracle when you sit there and see all those people in front of you, people that are so different in what they think, and yet they’ve decided to help solve their major differences under law. And when the students get too cynical, I say go look at what happens in countries that don’t do that,” Breyer said.

“Of course, people don’t agree,” Breyer continued. “But we have a country that is based on human rights, democracy, and so forth.”

He then stated his agreement with Presidents George Washington and Abraham Lincoln, who called the country “an experiment.” He then paraphrased Lincoln’s Gettysburg Address, in which the sixteenth president said, “We are now engaged in a great civil war to determine whether that nation or any nation so conceived and so dedicated can long endure.”


Breyer said that “liberals in Europe” scoffed at the idea of the American experiment when it began.

“You know who will see whether that experiment works?” Breyer asked. “It’s you, my friend.” He said it is up to everyone in present and future generations “to determine whether the experiment still works.”


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