Breyer’s Supreme Court Departure Gets Mixed Reaction on Capitol Hill

WASHINGTON — Associate Justice of the Supreme Court Stephen G. Breyer officially announced his retirement from the court Thursday.

After his colleagues told media outlets on Wednesday the announcement was coming, Democrats generally praised Breyer for his liberal stances protecting abortion, voting rights, the Affordable Care Act and opposing the death penalty.

Republicans are offering more guarded comments, saying they hope his replacement will not try to tip the balance of judicial rulings against them.

Senate Majority Leader Chuck Schumer, D-N.Y., said in a statement this week, “For virtually his entire adult life, including a quarter century on the U.S. Supreme Court, Stephen G. Breyer has served his country with the highest possible distinction. He is, and always has been, a model jurist. He embodies the best qualities and highest ideals of American justice: knowledge, wisdom, fairness, humility, restraint.”

Senate Republican Minority Leader Mitch McConnell, R-Ky., congratulated Breyer for his “thoughtful and consequential service” but added his hope for a replacement who would not be too liberal.

“The president must not outsource this important decision to the radical left,” he said in a statement. “The American people deserve a nominee with demonstrated reverence for the written text of our laws and our Constitution.”

Confirmation of any new Supreme Court justice must come from the Senate, where there are 50 Republicans, 48 Democrats and two independents. Republicans have so far been unable to block Biden’s appointments to lower federal courts.

Republican and Democratic leaders are pledging a swift confirmation process for Breyer’s replacement.

Initial indications from the Biden administration imply the president would like whoever takes over for Breyer to continue his line of judicial thinking.

Among the most notable 520 opinions he wrote for the Supreme Court, Breyer said in the 2000 decision of Stenberg v. Carhart that Nebraska’s law banning partial-birth abortion was an unconstitutional violation of pregnant women’s privacy.

In a 2015 dissent opposing the death penalty, Breyer wrote, “I believe it highly likely that the death penalty violates the Eighth Amendment.” The amendment bans “cruel and unusual punishments.”

In the 2019 case of Department of Commerce v. New York, Breyer wrote in a concurring opinion that the status of citizenship should not be among Census Bureau questions. Immigration advocates argued a citizenship question would make it easier to track down illegal immigrants.

Last summer, Breyer wrote the majority opinion in California v. Texas that said Texas and other states lack standing, or a provable injury, that would give them a right to sue to block the individual mandate of the Affordable Care Act. The court did not rule on the constitutionality of the individual mandate, which could require taxpayers to purchase health insurance.

Sen. Cory Booker, D-N.J., a member of the Senate Judiciary Committee, said in a statement, “The next Supreme Court justice should share Justice Breyer’s commitment to protecting and advancing the rights of all Americans.”

Tom can be reached at [email protected]