(Bloomberg) -- Justice Stephen Breyer is retiring, according to a person familiar with the justice’s thinking, giving President Joe Biden a chance to fill his first vacancy on the U.S. Supreme Court and reinforce its outnumbered liberal wing.
Breyer is the court’s oldest justice at 83.
White House Press Secretary Jen Psaki declined to confirm the reports. Supreme Court spokeswoman Patricia McCabe didn’t respond to requests for comment.
The next justice could serve for decades but isn’t likely to shift the ideological balance of the conservative-leaning court. Appointed by President Bill Clinton in 1994, Breyer was a pragmatist and consensus-builder who tended to side with the court’s liberal wing in divisive cases.
Biden has promised to nominate the first Black woman to the court. Leading candidates include California Supreme Court Justice Leondra Kruger and Judge Ketanji Brown Jackson, who recently won Senate confirmation 53-44 after Biden nominated her to the powerful federal appeals court in Washington.
Liberal activists had been calling on Breyer to retire while Democrats controlled the White House and Senate. The unusual public push came after a Republican-controlled Senate confirmed three Donald Trump appointees, including one to fill a seat the GOP held open for the last year of Barack Obama’s presidency and another for a vacancy that arose 46 days before Election Day 2020 when liberal Justice Ruth Bader Ginsburg died.
Breyer voted to strengthen abortion rights, legalize gay marriage and uphold race-based college admissions. In a 2015 opinion he said the death penalty is probably unconstitutional because it can’t be applied swiftly enough to serve as a deterrent without risking the execution of innocent people.
“We can have a death penalty that at least arguably serves legitimate penological purposes or we can have a procedural system that at least arguably seeks reliability and fairness in the death penalty’s application,” Breyer wrote. “We cannot have both.”
He crafted the two biggest two abortion-rights rulings of his tenure: a 2000 decision that struck down Nebraska’s ban on a procedure opponents called “partial-birth” abortion; a 2016 ruling that would have closed three-quarters of the state’s clinics by imposing new rules on clinics and doctors. The court’s conservative wing later chipped away at both of those rulings.
With the high court’s intervention in the case, “we do risk a self-inflicted wound -- a wound that may harm not just the court, but the nation,” Breyer wrote. He had earlier tried to broker a compromise that would have let the recounts resume.
Known for asking rambling questions during arguments, Breyer often suggested that he was struggling to find the right answer to a legal problem. He would lay out his tentative views of a case before telling a lawyer, “I’d like your response.” His questions and opinions alike tended to focus on the real-world consequences of a case.
Though he eventually came to doubt the death penalty’s constitutionality, Breyer often deferred to the needs of police or prosecutors. He joined a 2003 ruling that allowed forcible medication of some mentally ill criminal suspects to make them competent to stand trial. He voted with the majority in 2004 to let police set up traffic roadblocks to question motorists about a recent crime.
He joined a series of decisions that bolstered the rights of detainees at Guantanamo Bay in Cuba and carved out a central role for the judiciary during wartime. The last of those rulings, in 2006, barred the military tribunals the Bush administration had hoped to use to try accused terrorists.
On some issues, such as the role of religion in public life, Breyer took the middle ground. He voted in 2005 to bar displays of the Ten Commandments in two Kentucky courthouses while allowing similar depiction on the grounds of the Texas State Capitol. In 2019 he backed a century-old 40-foot cross in a Maryland intersection, while saying a newer monument wouldn’t necessarily be constitutional.
“The Establishment Clause concern for protecting the nation’s social fabric from religious conflict poses an overriding obstacle to the implementation of this well-intentioned school voucher program,” he wrote.
In 2002 he said in a dissenting opinion that Ohio violated the constitution ban on government establishment of religion by letting parents use tax-funded vouchers to send children to religious schools. Breyer said it didn’t matter that parents could instead choose secular schools.
As a justice, he wrote a series of books laying out his theory of the Constitution and the Supreme Court’s proper role. He argued against a rigid adherence to the words of the Constitution and federal statutes, saying judges should also consider the broader purpose of a law and the potential consequences of the court’s interpretation
“American judges, when they interpret the law, are prudent and pragmatic,” Breyer said in a 2010 interview. “They look for purposes. And they’re careful.”
Breyer dissented in 2000 when a 5-4 court decision stopped the Florida ballot recounts and sealed George W. Bush’s election as president over Democrat Al Gore.
Breyer’s retirement was earlier reported by NBC News.
(Updates with Breyer opinions starting)
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