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New reports Wednesday indicate Justice Stephen Breyer plans to retire, raising questions about his replacement. President Joe Biden said he will wait for Breyer's formal announcement. Senate Majority Leader Chuck Schumer cited the president's past words, indicating a desire to appoint America's first Black woman to the court. Senate Minority Leader Mitch McConnell said it's too soon to comment.
This is a day of three major news developments, from word of Justice Stephen Breyer's plan to retire from the U.S. Supreme Court, to coming interest rate hikes, and a NATO rebuff of Russia.
But, first, the Breyer news, and questions about who will succeed him.
President Biden said today that he will wait for Breyer's formal announcement.
Senate Majority Leader Chuck Schumer cited the president's past words.
Sen. Chuck Schumer (D-NY):
During the campaign, President Biden stated that he would choose a Black woman as his choice for the Supreme Court, and I expect he will follow through on that.
In the Senate, we want to be deliberate. We want to move quickly. We want to get this done as soon as possible.
Senate Minority Leader Mitch McConnell said it's too soon to comment. He said Republicans will respond once there's a nominee.
But, first, Breyer still has to make his retirement official. That could come as soon as tomorrow.
John Yang looks back now at his long career.
For 27 years, Justice Stephen Breyer has been a moderate liberal on a Supreme Court that has moved increasingly to the right.
Bill Clinton, Former President of the United States: Judge Stephen Breyer.
Nominated by President Bill Clinton in 1994, he sits on a court with a solid conservative majority, secured by three selections by President Donald Trump.
The most senior of the remaining three justices appointed by Democratic presidents, he defends positions he has long championed, like abortion rights.
In oral arguments last December, he quoted an earlier decision to say that the landmark ruling Roe vs. Wade should not be overturned.
Stephen Breyer, U.S. Supreme Court Associate Justice:
To overrule under fire, in the absence of the most compelling reason to reexamine a watershed decision, would subvert the court's legitimacy beyond any serious question.
And gun control, here in the 2008 case that led to the precedent-setting ruling that the Second Amendment protects an individual's right to keep a gun in the home. Breyer was in the minority.
Why isn't a ban on handguns, while allowing the use of rifles and muskets, a reasonable or a proportionate response on behalf of the District of Columbia?
Breyer also argues that the death penalty is unconstitutional. Here he is in 2015 on Boston PBS Station GBH.
The way it's administered, I have said, is sufficiently arbitrary, cruel, unusual now that we should reconsider the matter.
Through it all, he's interpreted the law by looking at its everyday effects on people. In a virtual talk for the National Constitution Center last year, he described his approach.
When you have a statute, and the statute has some words in it, and these words can be interpreted in two or three different ways, and the issue is how to interpret them, what do they mean, you look at the history, and you look at the purposes, and you will look at the consequences too, and you will try to evaluate them.
He also seeks common ground in cases of competing rights, what he's called the play in the joints. Here's Breyer in 2011 speaking at the Kansas City Public Library.
Many of our cases, the most difficult ones, are not about right vs. wrong. They are about right vs. right.
In oral arguments, his questions are marked by humor, spirited give-and-take with lawyers, and often whimsical hypotheticals, like this one from a 2000 case about whether trademark law prohibits knockoffs.
I mean, you could have a weird situation. Imagine you made a hairbrush in the shape of a grape.
Those characteristics were also on display in a series of appearances with the conservative icon Justice Antonin Scalia before his 2016 death.
Ah, we're making progress.
Judge Vince Chhabria, U.S. District Court of Northern California: He had unbridled optimism.
Federal Judge Vince Chhabria, a former Breyer clerk.
Judge Vince Chhabria:
When I was clerking for him, he was of the view that he would be able to convince Justice Scalia that the death penalty was unconstitutional.
Former clerks like Chhabria remember Breyer as a considerate, though sometimes absent-minded, boss.
One time, he walked into the clerk's office, and he started talking about a case. And he said, OK, I'd like you guys to research this and that. And then the judicial assistant looked up and said, justice, none of your clerks are in the room right now.
They're all outside having lunch. And he said, oh, OK. And he came out and he joined us, and sat down with us to talk about the cases.
But I want to emphasize that, when it came to writing opinions, you didn't see the absent-minded professor quality in the opinions he wrote, because he was always so careful to make sure that his opinions were widely accessible.
And they remember his commitment to diversity.
When you go to his law clerk reunions now, you see a group of people in the room that looks a lot like America, plenty of women, plenty of black and brown faces. Justice Breyer has launched all of those people to the highest levels. And that's a contribution, a diversity-related contribution, that will last far longer than his time on the bench.
Former clerk Risa Goluboff, dean of the University of Virginia Law School, says part of his legacy is his humanity.
Risa Goluboff, Dean, University of Virginia School of Law: One time, I brought my little children, my nieces, my brother, my sister-in-law to meet him and to go on a tour of the court. And my son at the time was about 4 or 5 years old, and he immediately climbed under Justice Breyer's coffee table, which is not what you want to happen when you bring your family to the chambers.
And Justice Breyer just sat down on his couch and he for some reason had a children's book sitting on his coffee table, and he opened it up and he just started reading it. And my son crawls back out from under the coffee table and sits up on the couch, and my niece sits there, too, and they both just were enthralled by him.
And he just — he was going to meet my son where he was, right?
A graduate of Stanford and Oxford universities and Harvard Law School, where he was an editor on the Law Review, Breyer was chief counsel on the Senate Judiciary Committee in 1980 when President Jimmy Carter named him to the federal appeals court.
In 1993, Clinton picked Ruth Bader Ginsburg over Breyer in his first opportunity to name a Supreme Court justice. Clinton picked Breyer for the next vacancy. The day the president introduced his nominee, the two jogged along the National Mall.
Who's faster, the judiciary or the executive?
Oh, no, he's much faster.
The Senate confirmed his nomination 87-9.
After President Biden took office, and with Democrats holding a slim Senate majority, progressives pressed Breyer to retire. Last September, Judy Woodruff asked him about his plans.
After 27 years on the court, what time frame are you talking about? In the coming year, are you saying?
Of course, there are many different considerations, and I haven't made up my mind definitely just exactly when.
But I don't want to die on the court. And, before then, I would like to retire. And just when that will be, I have not fully decided. And I think this isn't the place or the time where I want to go into it in depth.
University of Virginia law school dean Risa Goluboff:
I think Justice Breyer takes really seriously his role as a protector and a champion of the court.
And I think he thinks that, in order for the people to have trust and faith in the court, the kind of trust and faith that lets the court do its job, he has to continue to be a neutral judge.
And I could imagine that, for him, taking a step that might appear to be political, in a small-P politics kind of way, would have felt anathema to his stewardship of the court and its legitimacy in the eyes of the people.
On the day he spoke in the Rose Garden to mark his nomination, Breyer talked about what it meant to him to be a judge.
I have been given quite a few labels, but I hope no one would mind if I'm particularly proud of one label, that of judge, a judge of whatever court is honored by that name, and so too by the name of public servant.
Labels he has held for almost 50 years nearly 30 of them on the nation's highest court.
For the "PBS NewsHour," I'm John Yang.
Joining us to discuss Justice Breyer's legacy and the future of the nation's highest court is Marcia Coyle from "The National Law Journal."
Hello to you, Marcia.
You cover this court. You have covered it for a long time. I know it's hard to condense 28 years into just a few sentences, but what would you say Justice Breyer's legacy, main legacy is?
Marcia Coyle, "The National Law Journal": Well, Judy, I think it would have to be in his approach to judging where he, whenever possible, was making decisions, would try to make decisions that would work for the people and work for democracy.
He believed not just in deciding a case on the basis of facts and law, but he had a broader vision that the Constitution was more than a structural document. It was meant for the ages and it was meant to work for the people.
So, I think that's one. And I think the second one would be his concern for the institution itself and how it is perceived by the public. And, as you know, because I know you have spoken with him, that he has recently been concerned about the perception of the court in the eyes of the public and what reforms might do to the court, as well as whether the court would be perceived as a partisan body because of certain decisions that it might make, some of which could come this very term.
And, in connection with that, he has made a point of speaking about how the court is not driven by partisan concerns.
And yet, Marcia, the last time I interviewed him in September of 2021, there was a lot of speculation then about whether and when he might retire. I asked him about the effect that it might have on his decision, which party was in power.
Here's just a quick excerpt of that conversation.
Justice Breyer, do you think it makes a difference when you step down, whether there's a — not only a Democrat in the White House, but a Democratic majority in the Senate?
Yes, probably. I mean, I don't know for sure. No one ever knows.
And to what extent you take that kind of thing into account, it's a personal decision. Justice Scalia, Justice Rehnquist have said you do take that kind of thing into account. Others have been more reluctant to do it. So it's in the mix.
So, Marcia, what would you say is the main reason he's doing this right now?
I'm not sure, knowing him, that he was really ready to go wholeheartedly, because I think he truly loves the job and loves the challenges.
But he's 83. He is alert, active, involved in many different things,. So, probably, that also was in the mix, that there are other things he wants to do, as well as his family. He has a number of grandchildren, and perhaps he wants to spend more time with them.
What does the court lose with his departure?
I think they lose somebody who truly tried to be a consensus-maker, someone who, as he once told me, listens very hard when the justices talk in their private conferences for what he called the play in the joints. Was there some room there to bring them together or closer together?
And there was one term, the term in which Justice Scalia died, in which he and three other justices formed this group that worked very hard to find consensus and were successful in achieving narrow decisions that brought the court together.
So, I think they lose that very much. And they lose someone who brought humor to the bench. There aren't that many that are very funny, to be honest with you, Judy. But he could be.
And it was in a self-deprecating sort of way.
As they said, he's known for his incredible hypotheticals. I remember one that he gave to an advocate named Kannon Shanmugam that, after the hypothetical was written up in the transcript, it ran for three pages.
I'm sure Shanmugam had to bite his lip to say at the end to the justice, could you repeat that question?
So, that's going to be missed as well.
Marcia, tension turning very quickly, of course, to who President Biden will nominate to succeed him.
And just, as we heard earlier, were reminded, the president spoke about this during the campaign, during one of the early debates, primary debates.
And here's what he had to say about it.
President Joe Biden:
I committed that, if I'm elected president and have an opportunity to appoint someone to the courts, it will be — I will appoint the first Black woman to the courts. It's required that they have representation now. It's long overdue.
Marcia, what's the significance of that?
I think it's very significant.
One, it would be another woman. And, certainly, women are underrepresented on the court. Also, it would be a Black American, and they are very underrepresented on the court. She would bring a certain type of diversity beyond her color, and the court needs that as well.
So, just a reminder, when Thurgood Marshall was on the bench, Justice O'Connor often said that it was the stories he told in their private conference meetings that opened their eyes to a lot of what race meant in America. So it can't but help this court to have a Black female on the bench.
Marcia Coyle with "The National Law Journal," thank you so much.
My pleasure, Judy.
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John Yang is a correspondent for the PBS NewsHour. He covered the first year of the Trump administration and is currently reporting on major national issues from Washington, DC, and across the country.
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