Supreme Court Shake-Up: Justice Stephen Breyer Retires; Joe Biden Gets Opportunity To Name 1st Black Woman To Top Court

After almost three decades on the Supreme Court, Justice Stephen Breyer is stepping down.

With an official announcement expected soon, the not all together unexpected news from the liberal leaning 83-year old Associate Justice while a Democrat is in the White House now provides President Joe Biden with an opportunity to name a replacement. Justice Breyer is the oldest member of the conservative majority High Court

Always a big play for any POTUS, naming a successor to Breyer could be the beginning of Democrats’ long game effort to counter the current SCOTUS conservative majority by running out their clock with younger Justices. With the 2022 midterm elections anticipated to be close and Democrats potentially losing their power in the already 50-50 Senate and the House of Representatives, Justice Breyer’s exit may also be the only opening Biden has to get a strong and long-lasting nominee confirmed.

Also, the SCOTUS is expected to hand down seismic rulings on matters such as abortion in the coming months heading into confirmation hearings for any nominee. Adding to that is the fact that then candidate Biden pledged during the bitter 2020 campaign that if elected he would name the first Black woman to the Supreme Court.

Being that the appellate court is usually the source for Supreme Court nominees, the spotlight has therefore become even brighter on Judge Ketanji Brown Jackson since her elevation to the U.S. Court of Appeals for the District of Columbia Circuit last year. Other possible Biden picks for SCOTUS include California Supreme Court Justice Leondra R. Kruger and U.S. District Judge Leslie Abrams Gardner. As some Beltway insiders may now, Judge Abrams Gardner is the sister of former and perhaps future Georgia gubernatorial candidate Stacey Abrams, who’s voter access advocacy was vital to Biden securing the Peach State last year and the election of two Democrats to the Senate.

As for Justice Breyer, his successor will surely be part of his legacy.

Named to the Supreme Court by Bill Clinton in 1994 to take the seat vacated by Justice Harry Blackmun’s retirement, Justice Breyer’s end of term announcement follows in SCOTUS tradition. In recent years, though Justices Antonin Scalia and Ruth Bader Ginsburg died while still on the Court, Justices Sandra Day O’Connor and Anthony Kennedy made their respective decisions to step down on the last day of the 2005 and 2018 terms.

More low profile than some of his contemporaries, Justice Breyer was a pivotal vote and voice in heated and divisive issues like abortion rights. As well, he had a noted tendency over the decades to rule in favor of the legislative and executive branches of the federal government.

This much watched, and Covid-19 determined remote last term of the High Court saw the Harvard Law School grad and Watergate assistant special prosecutor vet penning the 7-2 majority opinion knee capping the latest GOP challenge to the Affordable Care Act AKA Obamacare. In the June 17 released California v. Texas, opinion deciding that the Lone Star state and others lacked standing to take on the health insurance expansion, Justice Breyer was curt and cutting. “It is consequently not surprising that the plaintiffs cannot point to cases that support them,” he wrote in the 57-page opinion. “To the contrary, our cases have consistently spoken of the need to assert an injury that is the result of a statute’s actual or threatened enforcement, whether today or in the future.”

Telling of the overall realities of SCOTUS right and the impact of a POTUS appointment, Justice Breyer was in the minority in both of the final opinions released by the Chief Justice John Roberts-led court on July 1 last year. In both the major voting-rights case out of Arizona and an attempt to require California nonprofits and charities to make public who their deep pocket donors are the Court was split 6-3 along ideological lines.

No matter who Biden names to the court, that line looks certain to be fixed in the sand for a while to come.

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