Justice Stephen Breyer, an influential liberal on the Supreme Court, to retire

Behind the scenes, Breyer, 83, pushed and prodded his fellow justices for consensus. His decision gives President Biden his first opportunity to name a new justice to the court.

Transcript

ASMA KHALID, HOST:

Supreme Court Justice Stephen Breyer is stepping down at the end of the court's current term in June. The retirement of the 83-year-old justice gives President Biden an opportunity to name his first Supreme Court justice. During the 2020 campaign, Biden pledged that if he got this chance, he would appoint a Black woman.

Joining us now is NPR legal affairs correspondent Nina Totenberg. Nina, good to have you.

NINA TOTENBERG, BYLINE: Nice to be here.

KHALID: So Nina, shortly after you, along with some other journalists, broke the news about Justice Breyer, we heard from the president.

TOTENBERG: About an hour after the news broke, President Biden essentially confirmed it.

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PRESIDENT JOE BIDEN: There has been no announcement from Justice Breyer. Let him make whatever statement he's going to make, and I'll be happy to talk about it later.

TOTENBERG: My information is that the formal announcement is going to come tomorrow.

KHALID: So do we know what to expect in terms of a timetable for the full process?

TOTENBERG: Assuming the White House has been using its time well to vet potential candidates in anticipation of a Breyer decision, there's plenty of time to confirm someone before Breyer officially steps down at the end of June. Remember that Trump nominated now-Justice Amy Coney Barrett a week after Justice Ginsburg died, and Barrett was confirmed a month later. In this case, a nominee could be confirmed beforehand and then sworn in upon Breyer's retirement.

KHALID: Well, Nina, let's hear some of your reporting, including the names that are on the table.

TOTENBERG: The two leading contenders are said to be California Supreme Court Justice Leondra Kruger and federal judge Ketanji Brown Jackson. Prior to becoming a California State Supreme Court justice, Kruger served as an assistant U.S. solicitor general and principal deputy in the Justice Department. She was hired initially by then-Solicitor General Paul Clement during the George W. Bush administration and served another six years in the Obama administration, earning high marks as a Supreme Court advocate.

Judge Jackson served eight years as a federal trial judge and was appointed last year by President Biden to the U.S. Court of Appeals for the District of Columbia, the court that three of the current justices served on prior to their elevation to the Supreme Court. Jackson, like Kruger, began her career with a coveted Supreme Court clerkship. She was a lawyer in private practice, served as vice chair of the U.S. Sentencing Commission and worked as a federal public defender representing indigent defendants. That experience would be unique on the current court, where four of the justices have experience as prosecutors and none as a public defender. Jackson was also on President Obama's shortlist for the Supreme Court in 2016.

Both women are young. Kruger is 45. Jackson is 51. And both have stellar legal credentials.

Whoever Biden picks, she will have big shoes to fill. Breyer, over his more than quarter-century on the court, wrote some of its less glamorous but legally most significant decisions. Last year, he wrote the court's 8 to 1 decision expanding free speech rights for students in declaring that a school could not punish a 14-year-old cheerleader for her off-color, off-campus speech. In another major case, he wrote the court's decision tossing out a challenge to Obamacare for a third time.

In recent times, perhaps his most well-known decision was the one he wrote for the court majority in 2016 striking down a Texas abortion law copied by other states. Breyer said the law, without any demonstrated safety justification, resulted in the closing of half the clinics in the state.

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STEPHEN BREYER: The closures mean fewer doctors, longer waiting times, increased crowding and significantly greater travel distances, all of which, when taken together, burden a woman's right to choose.

TOTENBERG: It was typical Breyer - practical and straightforward. There were no majestic phrases, but the effect at the time was profound in reaffirming the rights of women to terminate pregnancies. In addition to his written contributions to the law, Breyer, a moderate liberal, played a major and important role behind the scenes, pushing and prodding his fellow justices to achieve consensus and compromise on everything from Obamacare to affirmative action. But with the addition of three Trump conservative appointees and a far more ideological 6 to 3 conservative majority on the court, that task became increasingly difficult.

While last term, Breyer still seemed able to craft compromises behind the scenes, suddenly, this term, the court seemed poised to reverse long-established legal precedents he cared deeply about, including abortion. And at oral argument, Breyer's frustration and disappointment were clear. Faced with that reality, he made the decision to retire.

Breyer believed in persuasion and viewed a dissent as a failed opinion. But he did dissent and sometimes passionately, as he did when the court in 2007 invalidated voluntary school desegregation plans in Louisville, Ky., and in Seattle that were aimed at preventing previously segregated schools from resegregating. Pointing to the fact that the five-justice majority included two justices new to the court, he said this in dissent.

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BREYER: It is not often in the law that so few have so quickly changed so much.

TOTENBERG: Practical yet deeply intellectual, Breyer authored multiple books about the law - in two of them, arguing against the new conservative doctrine of originalism, the idea that the Constitution means what the founders thought it did when they wrote it. Breyer countered that the founders understood perfectly well that nothing is static and that the broad concepts of divided liberty set out in the Constitution were meant to adjust to the times. Even the founders themselves quickly disagreed about the meaning of the Constitution they'd just written, Breyer observed. The job of a Supreme Court justice, he argued, is to apply the Constitution's values to modern circumstances using the tools of judging - text, precedent and the purpose of the constitutional provision at issue - in other words, to establish borders.

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BREYER: And we're the border patrol. Life on the border is sometimes tough, and whether a particular matter - abortion or gerrymandering or school prayer - whether that's inside the boundary and permitted or outside the boundary and forbidden is often a very, very difficult and close question.

TOTENBERG: Justice Stephen Breyer, who prides himself on being willing to see both sides.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.