By Dave Andrusko
It is not official, but President Biden is expected to announce the retirement of Supreme Court Justice Stephen Breyer by the end of the week. The 83-year-old Breyer, who will retire from the court at the end of the 2021-2022 term, was under intense pressure to step down lest Republicans assume control of the Senate in the upcoming mid-term elections. Currently, there are 50 Democrats and 50 Republicans with Vice President Kamala Harris, in her role as President of the Senate, casting the tie-breaking vote.
Justice Breyer is stepping down when the abortion issue is front and center: Texas’s S.B.8 and Mississippi’s Gestational Age Act. Ironically, when Justice Breyer joined the Supreme Court in August 1994, having been nominated by President Clinton, he replaced Justice Harry Blackmun, the author of Roe v. Wade.
Universally described as “pragmatic,” Justice Breyer was a predictable vote in favor of abortion, having written the majority opinion in three cases: Stenberg v. Carhart; Whole Woman’s Health v. Hellerstedt; and June Medical Services v. Russo.
Mr. Biden “vowed to appoint a Black woman to the court if he were elected president,” reported Adam Liptak of the New York Times. “He made the promise at a debate in February 2020, just days before winning the South Carolina primary that helped jump-start his flagging campaign. ‘I’m looking forward to making sure there’s a Black woman on the Supreme Court to make sure we in fact get everyone represented,’ Mr. Biden said.
Pro-abortion organizations pressured the late Justice Ruth Bader Ginsburg to retire. She refused. Upon her death, President Trump then named Amy Coney Barrett. This only made pro-abortionists more determined to persuade Justice Breyer to retire. According to Amy Howe
After Ginsburg’s death in 2020, the New York Times reported on a plan hatched during the Obama administration by Walter Dellinger, a former acting U.S. solicitor general and Democratic insider, to lure Breyer – who has been known to give speeches entirely in French – into retirement by appointing him as the U.S. ambassador to France. Like the efforts to persuade Ginsburg to resign, the plan never went far.
Retirement discussions were tabled during the Trump administration, but the retirement spotlight returned to Breyer and intensified after Democrats won both the White House and the Senate in the 2020 elections. In a December 2020 interview with Slate’s Dahlia Lithwick, Breyer demurred when asked about his support for term limits for justices, saying “it is too close to something that is politically controversial. I mean, eventually I’ll retire, sure I will. And it’s hard to know exactly when.”