U.S. Supreme Court Justice Stephen Breyer, one of the court’s three reliable liberals, is retiring.
His retirement will be formally announced Thursday, but national media are reporting it now.
President Joe Biden now has a chance to nominate another liberal to the court, and he will most likely act soon. The Senate, which is tasked with confirming or rejecting justices, is split evenly between Democrats (including independents who caucus with them) and Republicans, with Vice President Kamala Harris having the tie-breaking vote. If Republicans win control in the November election, that could create problems for a Biden nominee.
Even now, Biden will have to get his nominee past two Democratic senators who sometimes side with Republicans, Joe Manchin of West Virginia and Kyrsten Sinema of Arizona. Breyer is expected to stay on until his successor is confirmed.
Breyer, 83, is the oldest justice. He was appointed in 1994 by President Bill Clinton after having been a federal appeals court judge, a law professor, and a lawyer in several federal government posts, including as part of the Watergate special prosecution team. He has usually supported LGBTQ+ rights, abortion rights, the Affordable Care Act, and other liberal causes, but he has taken issue with the idea that politics inform judicial rulings; he says judges simply apply the law as they see it.
He joined the court’s majority in ruling for LGBTQ+ rights in 1996’s Romer v. Evans, which struck down an antigay law in Colorado; 2003’s Lawrence v. Texas, which invalidated all remaining antisodomy laws; and 2020’s Bostock v. Clayton County, with the court holding that federal law against sex discrimination included discrimination based on sexual orientation and gender identity.
He also joined the majority in marriage equality cases: in 2013, Windsor v. U.S., striking down the main part of the Defense of Marriage Act, and Hollingsworth v. Perry, striking down California’s anti-marriage equality Proposition 8, and in 2015, the landmark Obergefell v. Hodges ruling, which established marriage equality nationwide.
In the Prop. 8 case, he challenged a lawyer who argued that barring same-sex couples from marriage was justified because marriage is tied to procreation. “There are lots of people who get married who can’t have children,” he said. “To take a state that does allow adoption and say — there, what is the justification for saying no gay marriage? Certainly not the one you said, is it?”
In 2018, Breyer did join in what was perceived as a negative ruling on LGBTQ+ rights, Masterpiece Cakeshop v. Colorado Civil Rights Commission. In the 7-2 ruling, the court vacated the commission’s finding that Masterpiece Cakeshop owner Jack Phillips had illegally discriminated against a gay couple for refusing them a wedding cake. The court held that the commission had shown bias against Phillips’s Christian beliefs instead of applying the law neutrally. The ruling applied only to Phillips’s situation and did not establish a broad right to discriminate, but LGBTQ+ rights advocates were concerned nonetheless. Another liberal justice, Elena Kagan, joined in the majority, as did swing justice Anthony Kennedy.
He also joined in the unanimous 2021 ruling that the city of Philadelphia was wrong to end its contract with Catholic Social Services for placement of children in foster care. The Catholic agency refused to certify LGBTQ+ people as foster parents, in violation of the city’s antidiscrimination law. But the court found that Philadelphia allowed for exceptions, so the Catholic group could continue to work for the city. Again, it did not establish a sweeping right to discriminate.
He was part of the majority, though, that last year decided not to hear a Washington State florist’s appeal of a ruling that she had illegally discriminated against a gay couple by refusing to provide flowers for their wedding, and a Virginia school district’s appeal of a ruling that it had committed unlawful discrimination against a transgender student by barring him from using the boys’ restroom at school. Those actions meant that lower courts’ pro-LGBTQ+ decisions remained in place.
Liberal politicians had put some pressure on Breyer to retire so that Biden could be assured of appointing his successor. In an August interview with The New York Times, Breyer said many factors go into a retirement decision and that he did not expect to remain on the court until he died.
Biden has vowed to appoint a Black woman to the Supreme Court. Possible nominees include Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the D.C. Circuit, Judge Leondra Kruger of the California Supreme Court, and Judge J. Michelle Childs of the U.S. District Court for South Carolina, Business Insider reports.
LGBTQ+ groups are issuing statements praising Breyer and offering recommendations about his successor. “During his nearly three decades on the Court, Justice Breyer has been a reliable defender of the civil rights of LGBTQ+ people,” said Sharon McGowan, chief strategy officer and legal director at Lambda Legal. She said Biden should “select a nominee whose commitment to equal justice under law is beyond question, and whose record demonstrates their understanding that LGBTQ+ people are entitled to the full protection of the Constitution’s guarantees of equality and liberty.”
“With Justice Stephen Breyer’s retirement, the Supreme Court is losing a brilliant legal mind and a champion of liberty and equality,” said Joni Madison, interim president of the Human Rights Campaign. “Justice Breyer’s tenure on the Court established him as a defender of LGBTQ+ civil rights and his decisions delivered important progress toward our country’s founding ideal of a more perfect union that is inclusive and equitable for all. … President Biden’s first nominee has big shoes to fill, as they will shape the future of progress on LGBTQ+ equality and play an outsized role in defending the rights and protections that have already been won.”
“Justice Breyer’s legacy will include elevating the dignity and rights of LGBTQ citizens,” said GLAAD President and CEO Sarah Kate Ellis. “Our country is more just because of his service. We urge President Biden to nominate a successor as committed to equality, and reflective of our diversifying nation. Women, people of color and LGBTQ people are underrepresented on the Court. The time is now.” McGowan and Madison likewise urged Biden to take diversity into consideration.
“We urge President Biden to make history and appoint a Black LGBTQ woman to the U.S. Supreme Court,” added Ruben Gonzales, executive director of LGBTQ Victory Institute. “With his previous commitment to nominate a Black woman, President Biden affirmed the important role diverse perspectives have on the bench and on the health of our democracy and society. There is a powerful pipeline of Black LGBTQ judges, officials and leaders who are more than qualified to fulfill this promise.”