What does Stephen Breyer and his retirement mean for Biden?

Stephen Breyer in a navy suit, purple tie and blue shirt talking with his hands up in front of a blue screen that says brookings in white multiple times
Justice Stephen Breyer. Credit to Flickr
Stephen Breyer’s retirement from the Supreme Court poses a new challenge for President Biden

US Supreme Court Justice Stephen Breyer has retired at the age of 83, meaning President Biden can nominate his first justice in his presidency. Breyer’s retirement allows for the introduction of a new liberal justice. President Obama nominated the newest liberal Justice Kagan back in 2010.

President Clinton nominated Stephen Breyer in 1994. The Senate confirmed him by a 87-9 vote. Clinton also nominated Justice Ginsburg. Her death in 2020 and Breyer’s resignation mean that none of Clinton’s nominees remain. Stephen Breyer is a loose constructionist in his interpretation of the Constitution. He once said: “The Court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances.” Stephen Breyer has been said to have a pragmatic approach to the law by looking at purpose and consequence. 

What are Biden’s biggest challenges?

President Trump successfully appointed three very conservative justices, which shifted the balance of the court where conservatives currently have a 6-3 majority. Therefore, Biden will have to decide whether he chooses a very liberal justice to appease more left leaning Senate Democrats or a more moderate justice to appease all Democrats within the Senate. Senators Manchin and Sinema have hindered the success of Biden’s agenda, with their opposition to abolishing the filibuster and other important legislation. This likely means that Biden will need to make sure that his nominee appeases all Senate Democrats so that he can have another success in his presidency to boost his approval rating. I believe that Biden will try to nominate a slightly moderate justice as he has continued to put his effort into being bipartisan, even compromising some of his agenda so far so that he can pass some legislation.

Who will Biden nominate?

President Biden plans to announce his nominee by the end of February, so time will tell. In a press conference he affirmed his pledge to choose a black woman, which was one of his campaign pledges when he ran for president. He said: “The person I will nominate will be someone of extraordinary qualifications, character, experience and integrity. And that person will be the first black woman ever nominated to the United States Supreme Court.”

Biden’s commitment to nominate a black woman has caused a debate among politicians and voters. Liberals are very supportive of his choice as a black woman has never been on the Court before. There have only been 2 black justices to sit on the Court. Justice Marshall was the first black justice to sit on the court, appointed by President Johnson. Justice Thomas is currently on the court, appointed by President H.W. Bush. There is very little diversity on the Court currently and throughout history. So this nomination would be a significant moment for all. Black women and girls may feel represented by seeing someone like them on the highest court of the land. I think that Biden’s decision is right because the Court should represent everyone in America and it highlights his progressiveness.

Biden’s historic decision has been well received by black democratic voters, whose support is dwindling for the President as he has not managed to pass national police reform in the aftermath of George Floyd’s murder and the Black Lives Matter movement in 2020. Biden has nominated more black women to the lower courts than any other president.  

What will the court’s upcoming issues be?

In a 1992 interview Clinton said: “I will appoint judges to the Supreme Court who believe in a constitutional right to privacy, including the right to choose.” This sentiment is still in the mind of Biden as the Court will hear an abortion case in its next session. It has always been a divisive topic in American politics since the decision the Court made in Roe v. Wade.

A single retirement can have a large impact on decisions of the Supreme Court. It is evident that in the Roberts Court, 20% of Supreme Court decisions have been decided by a 5-4 split. This further exemplifies the partisan nature of the confirmation of justices, with the political divide in the US ever increasing. Since Breyer’s confirmation, no justices have been confirmed unanimously as it often was before, showing the politicisation of the Court.


In summary, Biden’s nominee is a massive choice that could hinder or help his presidency. He has to consider the “qualifications, character, experience and integrity” of the justice. This is so that his own party will not object a justice. Also he has to consider that she is a black woman. This nomination also means so much more than that. He has to increase his approval rating before the midterms in November 2022. Biden is hoping to increase his majority in both the House and Senate. Lastly, I think that if Biden makes the right choice it will definitely be advantageous to the midterms. He will have another success to persuade voters who may be reconsidering their vote for him in the presidential election.

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