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Supreme Court Justice Stephen Breyer retiring; announcement expected Thursday

Breyer was nominated by Bill Clinton 27 years ago, and has served as one of the liberal voices on the court ever since.

WASHINGTON — Longtime liberal Supreme Court Justice Stephen Breyer is retiring, numerous Associated Press sources said Wednesday, giving President Joe Biden his first high court opening, which he has pledged to fill with the historic naming of the court's first Black woman.

Breyer, 83, has been a pragmatic force on a court that has grown increasingly conservative, trying to forge majorities with more moderate justices right and left of center. His retirement will give Biden the chance to name and win confirmation of a replacement before next fall's election when Republicans could retake the Senate and block future nominees.

Biden and Breyer are expected to hold an event at the White House Thursday to formally announce Breyer’s plans to retire, according to a person briefed on the planning who was not authorized to publicly discuss it in advance. Democrats are planning a swift confirmation, perhaps even before Breyer officially steps down, which is not expected before summer.

Democrats could lose control of one or both chambers of Congress in the midterm elections in November. The party in the White House typically loses seats in Congress in the midterms. 

The Senate is the chamber which confirms federal justices, needing a 51-vote majority. Democrats currently control the Senate with a 50-50 split and Vice President Kamala Harris serving as the tiebreaker. 

White House Press Secretary Jen Psaki tweeted shortly after the news broke saying the announcement was Breyer's to make. 

"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.  We have no additional details or information to share," she said.  

Breyer's retirement and ensuing replacement by a Biden-picked nominee wouldn't alter the ideological balance of the court, but Supreme Court nominations are sufficiently rare that they always result in a pitched battle in politically polarized times.

Because of the 6-3 conservative majority in the Supreme Court, Democrats and liberal activists worried that if the 83-year-old were to die or be forced to retire at a time when Democrats did not control the Senate, a Republican majority would block the appointment of his successor until a Republican president was sworn in. 

Breyer and Justice Ruth Bader Ginsburg resisted calls to step down the last time Democrats controlled Congress and the White House, when Barack Obama was president. Ginsburg died less than two months before Biden's election, and then-Senate Majority Leader Mitch McConnell pushed through the appointment of her successor, Justice Amy Coney Barrett, in record time before Biden was sworn in. 

Before that, in 2016, McConnell prevented President Barack Obama from filling a Supreme Court vacancy and kept Antonin Scalia's seat open awaiting the outcome of that year's presidential election, which was won by Donald Trump more than eight months after Scalia's death.

Breyer has served on the court since 1994, when he was nominated by President Bill Clinton to replace retiring justice Harry Blackmun.

A former Harvard professor and aide to Sen. Edward Kennedy in the 1970s, Breyer has been among the leading Supreme Court voices cautioning against viewing the justices as politicians in robes.

Speaking to a Harvard audience in April, Breyer said that "it is wrong to think of the Court as another political institution” and urged supporters of expanding the court to think long and hard about what that would do to the institution.

Credit: AP
In this April 23, 2021, file photo, members of the Supreme Court pose for a group photo at the Supreme Court in Washington. Seated from left are Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, while standing from left are Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett. (Erin Schaff/The New York Times via AP, Pool)

In the midst of the coronavirus pandemic, Breyer has spent much of his time at his home in Cambridge, Massachusetts, making a steady stream of public appearances via Zoom.

It is not yet known exactly whom Biden will nominate to replace Breyer, but Biden had promised to name a Black woman to the Supreme Court if a vacancy opened. 

Judge Ketanji Brown Jackson, seen as a leading candidate for the seat, was elevated by Biden in 2021 from a trial court in Washington to the federal court of appeals. She also once worked as a Breyer law clerk at the Supreme Court.