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Back in January of 2022, the story, as covered by NBC News and other outlets, was that:
“Supreme Court Justice Stephen Breyer makes his retirement date official.”
This followed a letter Breyer, who was nominated by President Bill Clinton and served as a senior member of the Supreme Court, wrote to President Joe Biden indicating his intention to step down from the bench. Immediately, the speculations from the White House to the shores of California began as people wondered who would be the replacement. That would become none other than Ketanji Brown Jackson, whose swearing-in was historic. Never before has this great honor been bestowed upon a black woman.
America owes Justice Breyer a great deal of gratitude. As a Supreme Court’s liberal wing member, he contributed significantly to several monumental legal precedents in the nation’s history.
Before his extended Supreme Court stint, Stephen Breyer was a San Francisco native known for nothing more than being a public school lawyer’s son. He understood the value of working hard early, having taken on summer camp kitchen and ditch digger work as a teenager for the holiday season.
He would go on to pursue an education at Stanford, graduating Phi Beta Kappa. Following this, he attended Oxford as a Marshall scholar, after which he would take on Harvard Law School. During this time, he became a law review editor and won a Supreme Court clerkship.
Before he was appointed associate justice by Bill Clinton in 1994, he was a Harvard professor for decades while enjoying several stints with the Justice Department’s antitrust arm.
His legal career all started with being a law clerk for Supreme Court Justice Arthur Goldberg.
Justice Breyer’s legal career would go on to be nothing short of incredible as he served as a Watergate scandal assistant special prosecutor, a First Circuit U.S. Court of Appeals judge, and a counsel on the Senate Judiciary Committee.
In 1994, President Bill Clinton would nominate Breyer to the Supreme Court, with confirmation coming in the same year. This great honor was in stark contrast to his days as a law clerk.
This follows the U.S. Constitution Article II, Section 2, which provides the president with the authority to perform such a nomination, with an appointment coming alongside the Senate’s consent advice.
From the White House, President Joe Biden said several kind words about the retiring Justice Stephen Breyer. First, Biden describes Breyer’s judicial record as being “practical, sensible, and nuanced.”
Going on, he called Breyer a model public servant, indicating that this happened during a time when the country was facing a great division.
In the letter penned to President Joe Biden, Justice Stephen Breyer informed Biden of his intention to retire from all regular judicial duties as a Supreme Court Associate Justice. He indicated that once the court handed down all remaining opinions for the term, the resignation would go into effect.
According to his note, the intended timeline would’ve been when the court rises for summer. This is typically late June into early July. The exact date would end up being on June 30, 2022, at noon.
Breyer wrote that he was incredibly grateful for his privilege and even referenced his colleagues, stating that his relations with them all were friendly and warm.
Finally, he acknowledged the privilege to serve as a great honor. Should you be interested in reviewing the letter, you may do so here.
After Breyer announced his intention to retire, feedback came in from the white house and elsewhere, which is to be expected for such a well-regarded member of the federal judicial system. On the congressional leadership side of the spectrum, three statements were provided.
The first comes from Chuck Schumer (D-N.Y.), Senate majority leader. Schumer highlighted how Breyer had served his country in the Supreme Court for what amounts to his entire adult life. Some of the qualities he indicated the retiring man exhibited were fairness, humility, restraint, knowledge, and wisdom.
House Speaker Nancy Pelosi (D-Calif) also added her remarks, stating that in Breyer’s departure, the country would be losing a leader who embodies honor and integrity, as well as someone who was a true guardian of America’s fundamental rights.
Finally, there is Senate minority leader Mitch McConnell (R-Ky). After congratulating Breyer for nearly three decades of serving in the nation’s highest court, he indicated attributes such as intelligence, rigor, and good faith. Additionally, he noted that Breyer commanded respect.
Of course, Supreme Court justices providing active service at the time also expressed their sentiments about Breyer’s retirement. These included Justices John Roberts, Samuel Alito, Clarence Thomas, Elena, Kagan, Samuel, Alito, Sonia Sotomayor, Brett Kavanaugh, Amy, Coney Barret, and Neil Gorsuch.
Many of the sentiments expressed by the federal bench echoed those of praise that congress put forward about the retiring Supreme Court Justice.
First, Breyer, the court’s oldest member at 84, was going to be incredibly missed and was described as nothing short of incredibly delightful to deal with.
Mentions were also made of the sheer integrity he would’ve displayed throughout his tenure of service and the way he would present insightful opinions.
Court Justice Stephen Breyer was also quite the lively character, introducing a host of conversational topics that would liven the dead mood surrounding airtime lunches. He was even known for putting knock-knock jokes out there and giving his acquaintances fun questions to solve.
While it’s clear that his judicial philosophy on matters such as the death penalty and others was appreciated, his acquaintances also came to love his character and personality, which will be sorely missed.
With Breyer retiring from the Supreme Court, the judicial system was then faced with the matter of who would be a suitable replacement for him. Several names floated around. However, President Joe Biden said that he would nominate a black woman for the job.
This would be none other than Circuit Court Judge Ketanji Brown Jackson, who was prepared to take the prescribed oaths. Once Breyer’s retirement took effect on June 30, Jackson’s swearing-in took place to have the vacancy filled. President Biden made his announcement on February 25, 2022, naming Jackson as a nominee worthy of the responsibility.
After a 53-47 vote, the Senate confirmed her on April 7, 2022. Three Republicans sided with the Democrats in voting.
The U.S. Constitution sets out the rules that govern appointing a Supreme Court Justice. Nevertheless, it is not legally codified.
Therefore, selections have been made in different ways. For example, while some Justices were acquaintances with similar ideologies to the president, others were recommendations from the White House counsel, lawyers in the Justice Department’s Office of Legal Counsel, the Attorney General, etc.
Typically, the president chooses a nominee for the great honor to start the process. Sometimes, a consultation with the Senate Judiciary Committee and its leadership may occur.
Following the nomination, the committee investigates the nominee thoroughly. Additionally, the nominee will visit Senator’s offices to garner support. A public event will occur in which the nominee testifies and takes questions before the Judiciary Committee.
About a week after the adjournment of the hearing, the committee will hold a vote. The Senate majority leader is consulted for the scheduling of a debate in the Senate, followed by a confirmation vote being held.
Note that the president may choose to take a recess appointment. Therefore, the need for Senate confirmation would be circumvented entirely.
Before the nomination and the decision to confirm Jackson, she served as a D.C. Circuit Court appeals judge. Before this, she was also a public defender on the U.S. Sentencing Commission and a federal district judge.
Her historical nomination and confirmation go beyond her being a black woman. She also represents the first former public defender nominated to serve on the high court.
Even outside the official decision, Jackson found favor in many, being one of the most positively viewed and favored judges in recent history to receive this honor. A whopping 49% of respondents who participated in a Morning Consult/Politico poll felt that Jackson should be confirmed, while only 26% thought she shouldn’t.
John Roberts’ 2005 confirmation was the only one in recent history backed by a more significant percentage of respondents in a Gallup poll, which sat at 59%. This marginally exceeded Jackson’s number, which sat at 58%.
While there is an outpouring of positive sentiments for the retiring Court Justice Stephen Breyer, the perception of the Supreme Court in the public eye is not at its most favorable. This comes in the wake of the recent decision to overturn Roe v. Wade, which allows states to ban abortion.
This decision greatly affected the trust American citizens had in the highest court following this ruling, which was driven by the conservative majority.
The last oral argument of Breyer’s distinguished career occurred on April 27. This was for the Oklahoma v. Castro-Huerta matter concerning states’ ability to prosecute reservation-based crimes against Native Americans.
Following the matter’s conclusion, Chief Justice John Roberts sincerely appreciated all the 83-year-old had done. His statement indicated that all who shared the bench with Breyer shared a privilege and bore tremendous appreciation.
Justices are often labeled liberal, conservative, etc. Supreme Court Justice Stephen Breyer believed that it was misleading to apply such labels. However, he was often looked at as being relatively moderate to liberal.
His journey to amassing his extraordinary qualifications led him to approach constitutional interpretation differently than many colleagues would. During his active duty, he based variations on practical considerations, which is how he believed it should be done.
This allows for changes with the times. While they respected him, this often meant that the more conservative judges were often at odds with him. From their perspective, the court was told to be guided by the founder’s original intent in the texts.
Some would describe Breyer as a pragmatic liberal. Compared to others on the left, not only was he more moderate, but he was also very open to compromise. He would often actively search for the said compromise.
This would lead to instances in which Sonia Sotomayor and Ruth Bader Ginsburg would differ from him and Elena Kagan on case details. You would often find that he was not as willing as some liberals to be on the side of criminal defendants.
In his final term, Breyer had some of his most productive moments. This was mainly due to the top assignments he would’ve received from Chief Justice John Roberts.
Additionally, Breyer wrote the majority opinion after rejecting the Supreme Court’s third challenge to the Affordable Care Act. Before this, he would write the court’s decision that Google committed no copyright violations in its high-profile case with Oracle.
Supreme Court Justice Stephen Breyer would also write the court’s defense of a matter where a high school punished a cheerleader following a profane rant on social media.
Even with being more center-aligned than his liberal counterparts, he was often a reliable vote for the left on specific issues, such as abortion, affirmative action, and gun rights.
There’s an enormous debt to him for writing some of the objectively most essential opinions on protecting abortion rights and calling into question his respect for unborn children.
President Bill Clinton took a chance with this nomination, but Supreme Court Justice Stephen Breyer was instrumental in several important matters throughout his active service. His most well-regarded attributes include optimism, cheerfulness, excitement, wisdom, and patience.
Not many in law have managed to affect the kind of change and provide the level of inspiration that he has.
Justice Ketanji Brown Jackson, a former law clerk, public defender, and the first black woman to hold such an office, was sworn in the same day that Breyer retired, and she is already set to take on high-profile cases in her tenure, including the denial of matrimonial services to same-sex couples. As the White House recounted, this swearing-in sees Biden honor a campaign promise of diversity.
This comes at a time when the nation’s perception of its highest court is not the best.
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Michael is a managing partner at the nationwide Ehline Law Firm, Personal Injury Attorneys, APLC. He’s an inactive Marine and became a lawyer in the California State Bar Law Office Study Program, later receiving his J.D. from UWLA School of Law. Michael has won some of the world’s largest motorcycle accident settlements.