Supreme Court Justice Stephen Breyer to retire

By Aditi Sangal, Maureen Chowdhury, Adrienne Vogt, Melissa Macaya, Meg Wagner and Mike Hayes, CNN

Updated 6:34 PM ET, Wed January 26, 2022
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1:54 p.m. ET, January 26, 2022

Biden declines to weigh in on Breyer retirement

From CNN's DJ Judd

(Nicholas Kamm/AFP/Getty Images)
(Nicholas Kamm/AFP/Getty Images)

President Biden declined to weigh in on the news Supreme Court Justice Stephen Breyer plans to retire, instead deferring to Breyer, who plans to announce his retirement at the White House as early as tomorrow, sources say.

“Every justice has the right to decide what he or she is going to do, and announce that on their own,” Biden told reporters in the State Dining Room Wednesday. “There’s been no announcement from Justice Breyer — let him make whatever statement he is going to make, and I'll be happy to talk about it later,” the President said.

Biden then returned to the program at today’s CEO Meeting at the White House, turning to Tom Linebarger, Chairman and Chief Executive Officer of Cummins, joking, “Do you want to go to the Supreme Court, Tom?”

“I’m going to defer on that one,” Linebarger responded, before starting his remarks.

1:27 p.m. ET, January 26, 2022

Senate Judiciary Chair Durbin says he will move Biden's nominee "expeditiously" through committee

From CNN's Lauren Fox and Ted Barrett

Senate Judiciary Chair Sen. Dick Durbin promised to move President Biden’s Supreme Court nominee to replace retiring Justice Stephen Breyer “expeditiously” through the committee.

“I thank Justice Breyer for his decades serving the Court and the nation. He has been a trusted voice on the bench with a first-rate legal mind," Durbin said in a statement.
“With this Supreme Court vacancy, President Biden has the opportunity to nominate someone who will bring diversity, experience, and an evenhanded approach to the administration of justice. I look forward to moving the President’s nominee expeditiously through the Committee.”

After Biden's selection, there will be hearings in the committee. The confirmation process timeline varies, but it usually takes months.

1:28 p.m. ET, January 26, 2022

Democratic lawmakers call on Biden to keep pledge to pick a Black woman for Supreme Court

From CNN's Mike Hayes

Lawmakers are starting to react to the news that Supreme Court Justice Stephen Breyer is retiring. Several Democratic lawmakers are tweeting that President Biden should pick a Black woman to fill the vacant seat after Breyer leaves the bench.

The White House has not released any statements on Biden's next steps yet but the President said during the campaign trail that he would nominate a Black woman to the Supreme Court.

As recently as June 30, 2020, for example, Biden said, “We are putting together a list of African American women who are qualified and have the experience to be on the court. I am not going to release that until we go further down the line in vetting them as well.”

Here are some of the reactions to the Breyer news from members of Congress:

Sen. Patty Murray of Washington:

Rep. Frederica Wilson of Florida:

Rep. Andy Levin of Michigan:

Rep. Jamaal Bowman of New York:

Rep. Bobby Rush of Illinois:

Rep. Ayanna Pressley of Massachusetts:

Rep. Cori Bush of Missouri:

Rep. Marie Newman of Illinois:

Rep. Anthony Brown of Maryland:

Rep. Gwen Moore of Wisconsin:

1:42 p.m. ET, January 26, 2022

Breyer informed Biden of his retirement decision last week, sources say

From CNN's Kevin Liptak, Wolf Blitzer and Phil Mattingly

Supreme Court Justice Stephen Breyer informed President Biden of his decision to retire last week, two sources familiar with the conversation told CNN.

He's expected to formally announce his retirement at a White House event with Biden as early as tomorrow.

Biden will speak about his 40 year friendship with Breyer. Earlier, Breyer will inform his Supreme Court colleagues of his decision, two sources tell CNN.

Watch CNN legal analyst Joan Biskupic explain why Breyer chose to announce his retirement now:

1:18 p.m. ET, January 26, 2022

Republican Sen. Lindsey Graham says he expects Democrats to remain united to replace Breyer

From CNN's Manu Raju

Sen. Lindsey Graham, a Republican from South Carolina, reacted to the Stephen Breyer retirement news on Wednesday, praising the Supreme Court justices and also noting that he expects Democrats to remain united to replace Breyer on the court. 

“Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court,” Graham said. 

Graham has voted for Democratic Supreme Court nominees in the past, including Sonia Sotomayor and Elena Kagan. 

Read his full statement:

“I appreciate Justice Breyer’s service to our nation.
“He has always been a scholar and a gentleman whose record on the Supreme Court is solidly in the liberal camp. 
“Justice Breyer has always shown great respect for the institution and his colleagues, and I wish him well in the next phase of his life.
“As to his replacement: If all Democrats hang together – which I expect they will – they have the power to replace Justice Breyer in 2022 without one Republican vote in support.
“Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court.”
1:18 p.m. ET, January 26, 2022

Schumer says Biden's SCOTUS pick will get a "prompt hearing" and be confirmed with "all deliberate speed"

From CNN's Manu Raju

Senate Majority Leader Chuck Schumer on Wednesday reacted to the news of Supreme Court Justice Stephen Breyer’s retirement, writing that American owes Breyer “an enormous debt of gratitude."

Schumer also vowed that President Biden’s nominee to replace Breyer will be confirmed with “all deliberate speed.” 

 Here's Schumer's full statement:

“For virtually his entire adult life, including a quarter century on the U.S. Supreme Court, Stephen Breyer has served his country with the highest possible distinction. He is, and always has been, a model jurist. He embodies the best qualities and highest ideals of American justice: knowledge, wisdom, fairness, humility, restraint. His work and his decisions as an Associate Justice on the biggest issues of our time – including voting rights, the environment, women’s reproductive freedom, and most recently, health care and the Affordable Care Act – were hugely consequential. America owes Justice Breyer an enormous debt of gratitude.
“President Biden’s nominee will receive a prompt hearing in the Senate Judiciary Committee, and will be considered and confirmed by the full United States Senate with all deliberate speed.”
1:25 p.m. ET, January 26, 2022

A look back at Justice Stephen Breyer's nearly 30 years on the Supreme Court

From CNN's Wolf Blitzer, Ariane de Vogue and Maureen Chowdhury

Then-Supreme Court nominee Judge Stephen Breyer speaks with reporters in May 1994 in the White House Rose Garden as US President Bill Clinton listens
Then-Supreme Court nominee Judge Stephen Breyer speaks with reporters in May 1994 in the White House Rose Garden as US President Bill Clinton listens (Robert Giroux/AFP/Getty Images)

Justice Stephen Breyer, a consistently liberal-leaning vote on the Supreme Court, is set to announce his retirement this week after serving nearly 28 years.

The announcement comes after Breyer repeatedly stated that he was undecided on his retirement plans as recently as last year.

Breyer, age 83, was nominated by former President Bill Clinton in 1994 and sworn in on Aug. 3, 1994.

With an unflappable belief in the US system of government and a pragmatic view of the law, he has served nearly three decades on the bench.

Breyer has sought to focus the law on how it could work for the average citizen. He was no firebrand and was quick to say that the Supreme Court couldn't solve all of society's problems. He often stressed that the court shouldn't be seen as part of the political branches but recognized that certain opinions could be unpopular.

"It is wrong to think of the court as another political institution," Breyer told an audience at Harvard Law School in 2021."It is doubly wrong to think of its members as junior league politicians," he said.

"If the public sees judges as 'politicians in robes,'" he warned, "its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court's power, including its power to act as a 'check' on the other branches."

In April 2020, Breyer appeared in a public service announcement urging individuals to fill out their census questionnaires, emphasizing how vital the information will be as the country grapples with the coronavirus pandemic — a rare move for an active member of the Supreme Court.

Breyer is known for his support for a woman's right to have a legal abortion, which became a point of controversy when he was given an award by Fordham University, a Jesuit school.

In 2015, in the case Glossip v. Gross, Breyer raised the question of whether the death penalty is unconstitutional in a 40-page minority dissenting opinion, which late Justice Ruth Bader Ginsburg joined. The judges voted 5-4 to uphold the use of a controversial drug for lethal injection in executions.

Early in his career, Breyer was law clerk for Supreme Court Justice Arthur Goldberg from 1964-1965.

Breyer was also special assistant to the assistant attorney general at the US Department of Justice from 1965 to 1967.

Breyer was a former assistant prosecutor during the Watergate hearings in the 1970s.

A little over a decade before he was sworn in to the Supreme Court, Breyer served as chief counsel for the US Senate Judiciary Committee from 1979 to 1980 and served as a judge for the US Court of Appeals for the First Circuit from 1981 to 1990. Breyer served as the chief judge of the US Court of Appeals for the First Circuit.

On the campaign trail, President Biden vowed that if he were to get a vacancy he would fill it with a Black woman, which would represent a historic first for the high court. Potential candidates include Judge Ketanji Brown Jackson, 51, who was confirmed last year to the powerful DC-based appellate court. She once served as a law clerk for Breyer and also worked as an assistant federal public defender and served on the US Sentencing Commission.

Breyer is expected to stay on until the end of the term and until a replacement is confirmed.

12:43 p.m. ET, January 26, 2022

Democrats confident on chances Biden's nominee to replace Breyer could be confirmed, sources say 

From CNN's Manu Raju

Senate Democrats are confident that whomever President Biden picks as his nominee to replace Supreme Court Justice Stephen Breyer will receive enough votes to get confirmed, according to senior Democratic sources.

That's because of both the math and the history. Since Senate GOP Leader Mitch McConnell pushed through a change in filibuster rules in 2017, it just requires a party-line, simple majority vote to advance a Supreme Court nominee.

In the 50-50 Senate, all Democrats need to stay united with Vice President Kamala Harris breaking the tie.

Moderate Democratic Sen. Joe Manchin has a long history of deferring to Presidents who make picks to the federal bench and the executive branch — backing two of three of then-President Trump's choices, Neil Gorsuch and Brett Kavanaugh. He opposed Amy Coney Barrett because her confirmation vote was too close to the 2020 election.

Sen. Kyrsten Sinema, another key Democratic moderate, has also sided with Biden on nominations.

And there's a strong likelihood that Biden could win over some key GOP swing votes, such as Sen. Susan Collins, who voted for then-President Obama's choices of Elena Kagan and Sonia Sotomayor. Sen. Lindsey Graham did as well. Sen. Lisa Murkowski, who faces a Trump-inspired GOP challenger this year, also voted against Kavanaugh.

Of course, once the nomination is made and the vetting process occurs, the dynamics can certainly change.

12:47 p.m. ET, January 26, 2022

How the Supreme Court confirmation process works

(Drew Angerer/Getty Images)
(Drew Angerer/Getty Images)

Supreme Court Justice Stephen Breyer's retirement leaves an empty seat to fill on the nine-member bench of the highest court in the US.

President Biden will choose someone for nomination, then there is a formal confirmation process, including public hearings. There's a committee vote and a Senate floor vote. Here's how all of this will work:

What happens after the nomination?

There will be hearings in the Senate Judiciary Committee, which is chaired by Sen. Dick Durbin.

How long does the process usually take?

It varies. Justice Amy Coney Barrett was sworn in on Oct. 26, 2020, a week before the 2020 election, after former President Trump nominated her a month beforehand following Justice Ruth Bader Ginsburg's death. Here's a deeper look into how long it has taken for past justices to be confirmed.

How many votes does it take to confirm a new justice?

It takes only a simple majority. Vice President Kamala Harris can break a 50-50 tie.

How long do most Supreme Court justices serve?

The average length of a Supreme Court tenure has grown a lot. Harvard Business Review did an actuarial analysis in 2018 and argued the average tenure over the next 100 years will grow to 35 years. It was 17 over the previous 100 years. Breyer was sworn in by former President Clinton in 1994.

Read more about the process here.

CNN's Zachary B. Wolf contributed to this post.