Breyer to Retire

Breaking News

Justice Stephen Breyer
Elizabeth Gillis/NPR

So reports the NYT.

It appears that he has decided not to make the same mistake RBG did.

FILED UNDER: Supreme Court, US Politics, ,
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter


  1. James Joyner says:

    But it’s an election year!

    And, yes, it would have been absurd for him not to give Biden a chance to keep that seat.

  2. wr says:

    I eagerly await Mitch’s new rule to explain why there can be no replacement until 2025. And Krysten Sinema’s lack of explanation for following it.

    Although part of me thinks that if McConnel is half the manipulator he thinks he is, he’ll let Biden’s pick slide through with only enough objection to please the rubes. He’s got to know that the Supreme Court is plummeting in public esteem thanks in great part to his trickery, and this is a chance to make it look a little more legit, while still maintaining the unbreakable 6-3 majority.

  3. Scott F. says:

    @James Joyner:
    We should have Trump name Breyer’s successor anyway, because… oh, I’m sure McConnell has a rationalization ready to go.

  4. Jay L Gischer says:

    It has been pointed out elsewhere that the dude’s had a very good year or two. The Oracle v. Google decision will last a long time, and he did a really good job on that opinion. Other big opinions he’s written are the Court’s defense of free speech rights of students and the final rejection of challenges to Obamacare.

    I guess he can feel he’s left the kind of mark he was looking for and can now hang it up.

    Well done, sir.

  5. Sleeping Dog says:


    WR, you’re giving Moscow Mitch more credit than he deserves. He doesn’t care a bit if the SC reputation is in the gutter, as long as he serves his wealthy patrons.

    This is the best news in months.

  6. Scott says:

    Using Barrett as the standard for nomination to confirmation, and if Supreme Court term is up in June, then confirmation of a new Justice should be around mid-August.

  7. Flat Earth Luddite says:

    @James Joyner:
    Yes, and past time. Your Honor, it’s time to spend your days doing what brings you joy. I can’t imagine dealing with the majority of your current fellow justices brings anything remotely resembling that.

    Oh, c’mon, you know MM will find a way to delay, deny, and generally f this mother up until the GOP controls everything. IF I were betting (and I’m not), I’d bet on this being blocked until at least 2024.

  8. Flat Earth Luddite says:

    Not sure why, but every comment but the ones asking to be let back in the playground have been vanishing this week. Sadness ensues, watered Elijah Craig with tears is not “good eats.”

    That being said, my last vanished comment to James were that it’s past time for Hizzoner to go do something that brings him joy (and working with at least 5 of the current Court can’t be too happy-making) and to Scott commenting that my personal bet on this is that MM and company block any open slot until sometime after 2024.

    As always, YMMV, and I’d be delighted to see them actually do SOMETHING that at least pretended to be their real (elected) jobs.

  9. @Flat Earth Luddite: Weirdly, there were several in the spam folder. I have released them.

    But this comment came through, no problem. The ways of the spam filter are mysterious at times.

  10. Kathy says:

    I assume Mitch is not an idiot, and he won’t do squat because he doesn’t have to. He already has stacked the court. Adding more to the conservative side is overkill, and he figures kill is enough.

    He may make a big deal about Breyer stepping down in time for Biden to nominate someone who’ll sail through confirmation before the election, which is clearly a partisan move, etc, as though Justice Kennedy didn’t do the exact same thing.

  11. just nutha says:

    I’ll believe that MM and company are going to let a Biden nomination through when it happens. With the mid-term election only 10 months away it’s really more appropriate to let the voters decide what Senators should advise and consent on the new nominee.

  12. Rick DeMent says:

    I’m hoping that whoever Biden nominates, they still have their ambilocal cord attached.

  13. Rick DeMent says:

    umbilical … cord that is

  14. Stormy Dragon says:

    I just want to point out the marker chip I put down last year predicting a Supreme Court vacancy is what Manchin was waiting for to flip the Senate and become a MAGA hero.

  15. Gustopher says:

    @wr: if Breyer is retiring at the end of this term, and none of our Senate Ancients croak, who cares what McConnell says?

    If Sinema starts saying that no Justice born of woman may be confirmed before off year elections with an evenly divided Senate or something, that’s on her, not him.

  16. HarvardLaw92 says:

    @Rick DeMent:

    My money is on Ketanji Brown Jackson as the nominee, and they’d be lucky to have her.

  17. Rick DeMent says:


    Geez 51? Too old. ACB is 49 … I’m looking for someone who hasn’t reached barroom age. grin

    But seriously, 20 years in federal service (VS ABC’s what 4 years?)

    Looks like a winner.

  18. HarvardLaw92 says:

    @Rick DeMent:

    She’s phenomenal. He couldn’t make a better choice IMO.

    (And she clerked for Justice Breyer, so in a way it would almost be like his spirit continues on the court)

  19. gVOR08 says:

    A little covered story is that Biden’s been getting judges confirmed at a pretty good clip. Apparently Manchin and Sinema are voting for them, and as long as that’s the case, there’s not much Moscow Mitch can do about it. This would lead me to believe a nominee will get through fairly cleanly. I suppose some donor could pay Manchin or Sinema to make a stand on a SCOTUS justice and Moscow would love to hand Biden a defeat. But as someone pointed out above, if they allow Biden an appointment the GOPs still have 6-3. To block a nominee would be pretty blatant obstructionism and getting to 6-2 doesn’t seem like a hill to die on.

  20. mattbernius says:


    My money is on Ketanji Brown Jackson as the nominee, and they’d be lucky to have her.

    100% this.

    She has both been a Federal Public Defender and served on the Committee that retroactively reduced federal drug sentencing guidelines. Thankfully the filibuster on nominees still isn’t in place as I could easily see a Cotton or another “tough on crime” Republican trying to prevent the nomination. I don’t see that happening now (meaning for the first time in more than 30 years we’ll have a public defender on the court).

  21. HarvardLaw92 says:


    She and her husband are both just lovely people, and her intellect is second to none. She’s world class. I have enormous respect for her. I’d easily slot her in with John Roberts among the smartest people I’ve ever had the privilege to know, and she’s a fighter. She’ll easily hold her own on that court and then some. I’d be over there marching in front of the White House with a sign if I thought it would help.

  22. Jim Brown 32 says:

    Well here’s where JB32 gets a little ig’nant (and arguably prejudice) but IDGAF

    Biden needs to break the mold for REAL Diversity.

    No Harvard alum
    No Catholics
    No Appellate Judges
    An AME or Baptist Black Woman (preferably from the south) married to a Black Spouse

    I said whut I said.

  23. James Joyner says:

    @Flat Earth Luddite: @Kathy: @just nutha: I assume McConnell would try to block a Biden nominee if he had the votes. He doesn’t, so he’ll make a pro forma objection and let it go through without much fight.

  24. James Joyner says:

    @Jim Brown 32: I would like to see some real diversity on the court but we’ve been in a pretty long cycle now where graduating Harvard or Yale Law and clerking for a Supreme Court Justice are de facto requirements for appointment. Indeed, Amy Coney Barrett broke the mold with a Rhodes/Notre Dame pedigree.

  25. SC_Birdflyte says:

    @Rick DeMent: Agreed. ‘Tis a pity Garland is so old. It would be satisfying to see Bide nominate him, then to watch Yertle whirl in circles about the unfairness of doing something to embarrass the GOP.

  26. @James Joyner:

    I assume McConnell would try to block a Biden nominee if he had the votes. He doesn’t, so he’ll make a pro forma objection and let it go through without much fight.

    My prediction is this: McConnell and the Reps will actually play relatively nice, McC in particular. He doesn’t have the votes to block, so he is going to pretend like he is super-reasonable on this vacancy to try and prove, retroactively, that he has been reasonable all along. He will use to further weave his narrative about the Scalia vacancy.

    Plus, the Rs have their 6-3 majority and this won’t change a thing.

    Now, if Breyer had waited until an R Senate was in place? It would have been obstruction all over again.