Breyer Bids President Adieu as SCOTUS Prepares to Announce Final Rulings

WASHINGTON — The letter, delivered to President Joe Biden Wednesday afternoon, was as modest and straightforward as the man who signed it.

“This past January, I wrote to inform you of my intent to retire from regular active service as an associate justice of the Supreme Court of the United States, upon the court rising for its summer recess,” Justice Stephen Breyer wrote.

“Accordingly, my retirement from active services … will be effective on Thursday, June 30, 2022, at noon,” he said.

Breyer’s departure from the bench after 28 years and 525 opinions, will come just hours after the court releases the final two decisions of its current term, one on the environment and the other on immigration.

The justice leaves the high court with a well-entrenched reputation as a pragmatist who consistently voted with the other liberal justices on the court. And though he often stressed that the Supreme Court couldn’t cure every ill in American society, he was a firm believer in the law working for the average American.

Breyer, who was appointed to the court in 1994 by then-President Bill Clinton, hasn’t said what he’ll do in retirement, though he is expected to be the final guest this summer on the long-running “The Kalb Report,” hosted by Marvin Kalb, the former CBS and NBC newsman who is also the Edward R. Murrow Professor Emeritus at Harvard University’s Kennedy School of Government.

The swiftness of his departure has led some to suggest that the court is eager to put this controversial term behind it, especially after the protests and threats that have ensued since a draft of its decision to overturn Roe v. Wade was leaked to a reporter in May.

Breyer writes in his letter to Biden that he understands that U.S. Circuit Judge Ketanji Brown Jackson, who was confirmed by a 53-47 vote in the Senate in April, “is prepared to take the prescribed oaths to begin her service as the 116th member of this court.” 

The Supreme Court later confirmed Jackson will be sworn in Thursday at noon, with Breyer, for whom she clerked and is succeeding, administering one oath, and Chief Justice John Roberts administering the other. 

Breyer concludes his note: “It has been my great honor to participate as a judge in the effort to maintain our Constitution and the rule of law.”

Jackson’s arrival on the court will not change its ideological balance. However, she will be the first Black woman to serve on the highest court in the nation.

The court will release its final two rulings of the current term on Thursday morning, beginning at 10 a.m.

As for the rulings to be released on Thursday, they are West Virginia v. Environmental Protection Agency, a case argued Feb. 28, and Biden v. Texas, which was argued on April 26.

The former is a  challenge to the EPA’s authority to regulate greenhouse gases, and it stems from former President Donald Trump’s decision to repeal the Obama administration’s Clean Power Plan and replace it with his own Affordable Clean Energy Rule.

The Clean Power Plan established guidelines for states to limit carbon dioxide emissions from power plants; Trump’s rule largely did away with them.

However, the U.S. Court of Appeals for the D.C. Circuit vacated the ACE Rule as arbitrary and capricious. 

The primary question before the Supreme Court is does the EPA have the authority to regulate greenhouse gas emissions in virtually any industry, so long as it considers cost, non-air impacts and energy requirements?

But before they get there, the justices will have to decide whether the petitioners have standing to bring a case at all given the Biden administration hasn’t reinstated or offered its own replacement of the Clean Power Plan.

The question before the court in the latter case, Biden v. Texas, is whether the Department of Homeland Security must continue to enforce the Migrant Protection Protocols, a policy begun by former President Donald Trump that requires asylum seekers at the southern border to stay in Mexico while awaiting a hearing in U.S. immigration court.

Dan can be reached at [email protected] and @DanMcCue