He has not released a statement on the matter. White House press secretary Jen Psaki commented: “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.”
CNN reported that Breyer will announce his retirement as early as Thursday, and will remain on the bench until his replacement is confirmed.
Breyer, a nominee of former President Bill Clinton and moderate liberal judge, has been on the Supreme Court since 1994. At 83, he is the oldest justice on the nation’s highest court. Because of his age, liberal activists began pushing for him to retire this year so that President Joe Biden could nominate a younger liberal justice to the lifetime position.
They hope his retirement will help Democrats avoid what happened with the late Justice Ruth Bader Ginsburg. She declined to retire while Barack Obama was president and then died in the final weeks of former President Donald Trump’s term, allowing him to place a third conservative justice on the bench and reshape the politics of the court for years, likely decades, to come.
Biden also has the benefit of a slim Democratic majority in the U.S. Senate, which will vote on the confirmation of any of his nominees.
Senate Majority Leader Chuck Schumer (D-N.Y.) vowed Wednesday that Biden’s nominee “will receive a prompt hearing in the Senate Judiciary Committee, and will be considered and confirmed by the full United States Senate with deliberate speed.”
In his statement, Schumer praised Breyer for his role in landmark decisions during his quarter century on the court.
“His work and his decisions as an Associate Justice on the biggest issues of our time — including voting rights, the environment, women’s reproductive freedom, and most recently, health care and the Affordable Care Act — were hugely consequential,” he said. “America owes Justice Breyer an enormous debt of gratitude.”
Recent opinions Breyer authored include the ruling on June Medical Services v. Russo, which struck down a Louisiana law requiring any doctor who performed abortions to have admitting privileges at a nearby hospital, and the ruling in County of Maui v. Hawaii Wildlife Fund, which affirmed the reach of the Clean Water Act.
In a rare interview in 2020, Breyer told the American Bar Association he was confident in the country’s ability to make progress on issues of racism.
“We have had many ups and downs in this country,” he said. “We did have slavery, we did have a civil war, we did have a legal system of segregation ... but somehow we do overcome them.”
If Biden makes good on his promise, Breyer’s replacement will be a Black woman ― a demographic that has never before been represented on the Supreme Court. If confirmed, she will be only the sixth woman and third Black justice to serve in the position.
Judge Ketanji Brown Jackson, a federal district judge in D.C. whom Biden nominated to serve on the D.C. Circuit federal court of appeals, is among those who have emerged as a potential front-runner for the role, as that appeals court has been a launching pad for many other Supreme Court justices.