From Scotusblog: Stephen Breyer, pragmatic liberal, will retire at end of term

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Justice Stephen Breyer, a devoted pragmatist and the senior member of the Supreme Court’s liberal wing, will retire from the court at the end of the 2021-22 term, NBC News reported on Wednesday. Over nearly 28 years on the court, Breyer shunned rigid approaches to legal interpretation, often seeking functional rulings with an eye toward real-world consequences. He wrote major opinions favoring abortion rights, demarcating the separation of powers, and turning back a challenge to the Affordable Care Act. In his later years, he repeatedly questioned the constitutionality of the death penalty. His retirement opens the door for President Joe Biden to fulfill a campaign promise and nominate the first Black woman to the Supreme Court.

The decision by the 83-year-old justice to step down is not surprising. Although Breyer is apparently in good health and by all accounts enjoys his job, Democrats began calling for him to retire shortly after the 2020 election so that Biden could nominate a younger judge to take his place. When Biden does nominate a successor, the confirmation battle that follows is likely to divide along partisan lines. And although a Biden nominee is not likely to change the ideological balance on a court currently dominated by conservatives, the nomination hearings could nonetheless prove contentious given the polarized climate that now surrounds every Supreme Court vacancy.

When he was nominated to the Supreme Court by then-President Bill Clinton in 1994, Breyer had spent the previous 14 years as a judge on the Boston-based U.S. Court of Appeals for the 1st Circuit. Breyer had also been a candidate to fill the vacancy created by the retirement of Justice Byron White one year earlier. But Breyer had been hit by a car while riding his bicycle shortly before he came to Washington to meet with Clinton in June 1993 and was still recovering from injuries that included broken ribs and a punctured lung. The interview reportedly did not go well, and Clinton chose a 60-year-old Washington, D.C., appeals court judge named Ruth Bader Ginsburg to fill White’s seat.

Breyer would get another shot less than a year later, after Justice Harry Blackmun announced his plans to step down after the court’s 1993-94 term. According to reporting by CNN in 2014 based on the papers of Diane Blair, a close confidante of the Clintons, Bill Clinton considered both Richard Arnold, a fellow Arkansan serving as a judge on the U.S. Court of Appeals for the 8th Circuit, and Bruce Babbitt of Arizona, then the secretary of the interior, before nominating Breyer – releasing the decision so quickly that Breyer did not have time to travel to Washington for the announcement. After a week of hearings that the New York Times characterized as intentionally “tame,” Breyer was confirmed by a vote of 87 to 9 on July 29, 1994.