PHILADELPHIA (KYW Newsradio) — U.S. Supreme Court Justice Stephen Breyer, 83, is planning to retire this year, and two Philadelphia legal experts say it could open up an historic opportunity for a Black woman to serve on the bench.
In Breyer’s nearly three-decade run on the high court, his decisions have influenced pivotal cases on free speech, abortion and rights for LGBTQ Americans, always with pragmatism and a commitment to facts.
“The next justice will probably be more left-leaning, more progressive, than he was,” said Temple law professor Craig Green, who clerked for United States Attorney General Merrick Garland.
Green says that won't make much difference in the short term, because the three more liberal-leaning justices are already in the minority.
“In any of the important cases that people pay attention to – voting rights, or abortion rights, or affirmative action, or administrative power, or the vaccine mandate, any of those kinds of things – Justice Breyer was voting in the dissent, and so will his successor,” he said. “So it won't change anything in terms of the precedent or the decisions in the immediate term anyway.”
University of Pennsylvania law professor Kermit Roosevelt says Breyer’s retirement is strategic.
“It gives [President Joe] Biden a chance to replace someone who was probably going to be leaving the Supreme Court relatively soon, within the next 10 years or so, anyway. So, this is really an example of strategic retirement, which is what we've been seeing increasingly in recent years.”
Roosevelt says justices tend to leave the court when they know a president with a similar constitutional ideology will be choosing their replacement.
“It's not going to affect the balance of power on the Supreme Court, … but it will prevent that from becoming more lopsided,” Roosevelt said.
But, he says, that replacement could still make history. The open seat will give Biden the opportunity to fulfill a campaign promise — to nominate a Black woman. If confirmed, that nominee would be the first Black woman to hold a Supreme Court seat.
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Justice Sonia Sotomayor is currently the only woman of color on the high court.
“Biden has suggested he's going to nominate a Black woman, which I think would be a great milestone and a great first for the Supreme Court,” Roosevelt said.
Members of Congress have taken to Twitter, holding the president accountable to his promise. Green says he believes it is likely to happen.
“I think the historic importance of getting a quickly confirmed, highly credentialed, extraordinarily capable, well regarded African American woman on the Supreme Court of the United States – I think that's the main objective. And I think everything else will kind of bend before that.”
Both Green and Roosevelt expect Biden to announce his nominee within days, and they say U.S. Circuit Judge Ketanji Brown Jackson is on Biden’s short list.
Jackson, 51, was nominated by President Barack Obama to be a district court judge. Biden elevated her to the U.S. Court of Appeals for the District of Columbia Circuit.
“The D.C. Circuit … is a traditional stepping stone to the Supreme Court,” Roosevelt said.
And early in her career, she was also a law clerk for Breyer. Biden has already met with her personally, he interviewed her for her current post.
The Associated Press reports that early discussions about a successor to Breyer have also focused on U.S. District Judge J. Michelle Childs and California Supreme Court Justice Leondra Kruger, according to people familiar with the matter who spoke on condition of anonymity to discuss White House deliberations.
Childs, a federal judge in South Carolina, has been nominated but not yet confirmed to serve on the same circuit court. Her name has surfaced partly because she is a favorite among some high-profile lawmakers, including Rep. James Clyburn, D-S.C.
Kruger, a graduate of Harvard and of Yale’s law school, was previously a Supreme Court clerk and has argued a dozen cases before the justices as a lawyer for the federal government.