Supreme Court Justice Stephen Breyer to retire, giving Biden a chance to nominate a replacement

Supreme Court Justice Stephen Breyer will retire at the end of the current term, giving President Joe Biden a crucial opportunity to replace the liberal justice, NBC News reported Wednesday.

Breyer at age 83 is the oldest member of the court. Former President Bill Clinton nominated him and he took his seat in 1994. Biden as a presidential candidate vowed that his first Supreme Court nominee would be a Black woman.

Breyer will retire as the high court, sporting a 6-3 conservative majority after the Senate confirmed three nominees of former President Donald Trump, shows a willingness to wade into divisive cultural issues and question long-standing judicial precedent.

U.S. Supreme Court Associate Justice Stephen Breyer is seen during a group portrait session for the new full court at the Supreme Court in Washington, November 30, 2018.
Jim Young | Reuters

Breyer is expected to step down at the end of the court’s current term, NBC reported, citing people familiar with the decision. Biden is expected to act quickly so his successor can be ready to serve when the next term begins Oct. 3, according to NBC.

Republicans, who hope to regain a majority in the Senate, could throw a Biden nominee in jeopardy if they take control of the chamber in January and the seat is still open.

Democrats can confirm Breyer’s successor with a simple majority in the Senate, which is currently split 50-50 between the two parties. Vice President Kamala Harris wields the decisive vote in case of a tie.

“It has always been the decision of any Supreme Court Justice if and when they decide to retire, and how they want to announce it, and that remains the case today,” White House press secretary Jen Psaki said on Twitter.

“We have no additional details or information to share from @WhiteHouse,” she tweeted.

A spokeswoman for the Supreme Court did not immediately respond to CNBC’s request for comment.

Some U.S. progressives, eager to at least preserve the three-seat liberal wing of the court, have pushed Breyer to step down quickly and allow Biden to nominate his successor while Democrats hold the Senate majority.

In interviews over the past year, Breyer appeared to chafe at these calls, while noting that he did not “intend to die on the court.”

It’s unknown whom Biden will pick as his nominee. In his first year in office, Biden nominated 62 women to the federal judiciary, including 24 Black women, a White House official told NBC.

His eventual candidate will likely facing a grilling from Republicans on the path to the court, which has become a scorched-earth political battlefield in recent years.

The court in this term alone has heard major cases on abortion, guns and religion — three perennially controversial topics in U.S. politics — even as its approval rating sinks to new lows.

Conservative justices appear poised to gut Roe v. Wade, the decades-old ruling that established the constitutional right to an abortion before viability. The court also declined to block the enforcement of a strict Texas law banning most abortions after just six weeks, as activists and abortion providers in the state warn of an ongoing crisis for women’s health.

This week, the court said it would consider lawsuits challenging universities that consider an applicant’s race in admissions, a practice long decried on the right.

Breyer, known for his pragmatic approach to sticky legal questions, in the current term has reliably voted with the liberal bloc alongside Justices Sonia Sotomayor and Elena Kagan.

Senate Majority Leader Chuck Schumer, D-N.Y., in a statement said Breyer “is, and always has been, a model jurist.”

“He embodies the best qualities and highest ideals of American justice: knowledge, wisdom, fairness, humility, restraint,” the Senate leader said.

Biden’s eventual nominee to replace Breyer, Schumer added, “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.”

This is breaking news. Please check back for updates.

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