Justice Stephen Breyer has cultivated a reputation as a pragmatist on the bench. With reports today that he intends to retire, he’s shown a willingness to be a realist in the realm of politics, too. The decision, made while Democrats still hold a narrow majority in the Senate, paves the way for President Biden to make good on his promise to nominate the first Black woman to the Supreme Court.
The 83-year-old Breyer, who clearly enjoys his position on the highest court, had previously hemmed and hawed about the timing of his exit, and the progressive advocates who openly called for him to step down were scolded for being either uncivil or counterproductive.
But Breyer, who in a prior life was chief counsel to the Senate Judiciary Committee, could see for himself what happened when Ruth Bader Ginsburg, having declined to retire during the Obama administration, died weeks before the Trump presidency ended. “This is a huge step in preserving his legacy in a way that Justice Ginsburg failed to do,” said Leah Litman, a law professor at the University of Michigan. “He saw what happened to his friend, to her jurisprudence and all the things that mattered to her when she didn’t step down while she was able to. It is a credit to him that he made this decision even though he’s doing a job that he obviously very much loves.”
Trump had his campaign-era list of justices who he promised would overturn Roe v. Wade, while Biden’s pledge served other coalition goals. It was clearly intended as a gesture toward representation from an older white man who won on the strength of Black votes, who chaired the Senate Judiciary Committee during the Clarence Thomas hearings, and who took far too long to apologize to Anita Hill for how she was treated there. During the 2020 election, Representative Jim Clyburn, who was instrumental in securing Biden the Democratic nomination, told PBS, “I long for an African American woman to sit on the United States Supreme Court.”
Alongside Biden’s choice of running mate, the pledge resonated, law professor Melissa Murray told me just before Biden was inaugurated. “That it wasn’t an either-or, that it could be a both-and,” she said. “To the extent that women of color and Black women in particular supported this ticket, it was on the strength of what they saw as a commitment to lift up a group that has historically been overlooked.”
Biden has already nominated a history-making eight Black women to the appeals courts, including Ketanji Brown Jackson, a former Breyer clerk who is widely considered a front-runner to the Supreme Court nomination. If confirmed, Breyer’s replacement would join a court dominated by newly emboldened conservatives, who are expected to decimate abortion rights before the end of this term and have picked new fights on the separation of church and state and affirmative action.
The Court’s conservatives have sometimes differed on priorities, preferred pace, and precise judicial philosophy. But they seem united in hostility to reproductive rights and remedies to racial injustice. “Now is an important time for a Black woman to be in the room when those decisions get made,” said Litman. Even if it’s certain she’ll be outnumbered in more ways than one.
