Without hard facts to go on, many Americans now have the impression that there will be a vacancy on the Supreme Court, and quite soon. But nothing of consequence can happen on that until there is an explicit statement that it is definitely going to happen.
The topic here, of course, is the widely reported intention of Justice Stephen G. Breyer to retire from the Supreme Court, maybe at the end of the Court’s current term (late June or early July). The report began circulating following a story by Pete Williams, the highly respected TV reporter for NBC, who covers both the Court and the Justice Department.
It is worth a little, but not much, to speculate that the word of this development probably came from within the Justice Department. NBC’s Williams has incredibly solid sources at all levels of the Justice Department, and probably would have picked it up if word were circulating there.
The norm for most retirements from the Court is for the Justice to privately notify the President, either by letter or otherwise, because the President has the authority to nominate a successor. If that has happened with Breyer, it would not be at all surprising if word of it got passed to the Justice Department – again, not much more than speculation.
Here, though, is the actual situation as of Wednesday evening:
- Breyer has made no public announcement, and neither has the Court.
- The White House has declined to make any such announcement, saying that is the prerogative of a Justice.
- The Senate’s Democratic leadership is operating on the assumption that it is going to happen, and accordingly is making plans to move ahead quickly – once the retirement has become a public fact. There is, as of now, no vacancy on the Court and no publicly declared intention to create one by any Justice. The timing is, constitutionally speaking, their own choice.
- There is some speculation, probably without foundation, that Breyer might even leave the bench before the end of the term, if the Senate were to approve a successor before then. If Breyer has anything to do with it, he almost certainly would not go along with any such quick succession. It would seriously complicate the work of the Court, upsetting the process of reaching decisions that had not yet been finished.
- It is quite customary for Justices to make their retirements as of the close of the current term of the Court. Breyer, however, could announce that as his intention, which would be enough to let the succession process begin, even if no vacancy would actually exist until the Court had headed into summer recess.
- The Senate is currently split 50-50 between members of the two political parties (including two independents who vote with the Democrats), and a successor to Breyer could be approved on a 50-50 vote, with Vice President Kamala Harris breaking the tie in favor. So far, two Democrats who have been problematic for their party on some issues – West Virginia’s Joe Manchin and Arizona’s Kristen Sinema – have voted to approve every one of the Biden nominees to lower federal court judgeships.
- A Supreme Court nomination cannot be filibustered in the Senate; the rule to allow that was cast aside when Republicans controlled the Senate in 2017. They did so to end a Democratic filibuster of the nomination of Neil M. Gorsuch to the Supreme Court, clearing the way for his confirmation.
The Breyer situation, of course, could change if the Justice does goes public with any such plan to end his tenure on the Court (he marked his 27th anniversary there last August). Only those who are closest to him know what his actual intentions are.
Even so, speculation on possible successors was rampant on Wednesday, with much of it focusing on a one-time Supreme Court law clerk for Breyer, U.S. Circuit Judge Kitanji Brown Jackson. She is now the junior judge on the U.S. Court of Appeals for the District of Columbia Circuit; she was seated on that court last June. She previously had served as a trial judge in the U.S. District Court in the nation’s capital.
Her most notable vote on the Appeals Court so far came in December, when she was on a unanimous three-judge panel that approved the compelled disclosure of thousands of pages of former President Trump’s White House files to the House of Representatives special committee investigating the violent attack on the Capitol last January. (The Supreme Court last week denied Trump’s request to block that decision.)
Judge Jackson’s name has been prominent among potential Court nominees ever since Joe Biden, as a presidential candidate, said he would nominate a black woman to the Court if elected. As President, he nominated her to the Appeals Court.
The numerical reality for the Supreme Court is that, no matter whom President Biden chose to succeed Breyer, it probably would not change markedly the control of the Court. There is now a strong conservative majority of six Justices, with Breyer one of only three liberal or progressive Justices.
Breyer, in his time on the Court, has been the liberal member most likely to have some influence with some of his conservative colleagues. He has worked hard as a consensus builder, when the voting situation created opportunities for that. He has never been considered so keen in his liberalism as to be predictable on major issues. He is most commonly considered to be a pragmatist.
He is not known for strongly worded dissenting opinions, as happens frequently with his most liberal colleague, Justice Sonia Sotomayor, nor is he known for literary cleverness, as is his other liberal colleague, Justice Elena Kagan.
His trademark during the Court’s public hearings is to ask meandering, multi-layered questions that sometimes leave lawyers confused about how to respond. Privately, he is a bit defensive about that tendency, a sign of his abundant good humor.
Breyer is a scholar of considerable distinction. One of his favorite uses of private time, off the Court, is to translate literature from French to English.
One of his proudest public accomplishments was to be the principal design consultant on the building of a new federal courthouse in Boston, when he was a federal Appeals Court judge.
President Bill Clinton chose him for the Supreme Court in 1994; the Senate confirmed his nomination by an 87-9 vote. He succeeded Justice Harry A. Blackmun (who died in 1999.)