WASHINGTON — Justice Stephen G. Breyer, the senior member of the Supreme Court’s three-member liberal wing and a persistent if often frustrated advocate of consensus as the court moved sharply to the right, will retire upon the confirmation of his successor, people familiar with the decision said, providing President Biden a chance to fulfill his pledge to nominate a Black woman.
Mr. Biden is expected to formally announce the retirement at the White House on Thursday, but the partisan machinery that has built up in recent decades around Supreme Court confirmations was already swinging into action on Wednesday as word of Justice Breyer’s decision raced through Washington.
Justice Breyer, 83, the oldest member of the court, was appointed in 1994 by President Bill Clinton. After the death of Justice Ruth Bader Ginsburg in 2020 allowed President Donald J. Trump to appoint Justice Amy Coney Barrett as her replacement, Justice Breyer became the subject of an energetic campaign by liberals who wanted him to step down to ensure that Mr. Biden could name his successor while Democrats control the Senate.
With conservatives now in full control of the court, replacing Justice Breyer with another liberal would not change its ideological balance or affect its rightward trajectory in cases on abortion, gun rights, religion or affirmative action.
But the opening provides Mr. Biden a chance to put his stamp on the court — the last justice nominated by a Democrat was Elena Kagan by President Barack Obama nearly a dozen years ago — and Democratic leaders on Capitol Hill said they intended to move quickly to begin the confirmation process once Mr. Biden selects a successor for Justice Breyer.
Their goal, they said, was to have hearings completed and a nominee confirmed in time to be sworn in soon after the court completes its current term in late June or early July, allowing Justice Breyer to serve out this term.
Democrats control the Senate by the narrowest of margins. If they were to lose even a single seat, the balance of power in the chamber would flip, making it much more difficult for Mr. Biden to win confirmation for his nominee. But as long as Democrats maintain control and stay unified behind Mr. Biden’s choice, it will be difficult for Senator Mitch McConnell, Republican of Kentucky and the minority leader, to derail the nomination.
“We want to move quickly,” said Senator Chuck Schumer of New York, the Democratic majority leader. “We want to get this done as soon as possible.”
It is not clear how quickly Mr. Biden will name his nominee. He pledged nearly two years ago, during the Democratic primary campaign, that he would appoint a Black woman to fill the first vacancy of his presidency, a promise the White House reiterated on Wednesday.
Justices typically announce their intention to step down in letters to the president, often making retirements contingent on the confirmation of their successors so as not to leave the court short-handed in the event of delays. Justice Breyer will presumably want to serve out the balance of the current Supreme Court term, which will include major decisions on abortion and the Second Amendment.
NBC News earlier reported that Justice Breyer planned to retire.
Speculation about whom Mr. Biden might nominate has centered on two possibilities: Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the District of Columbia Circuit, who graduated from Harvard Law School and served as a law clerk to Justice Breyer, and Justice Leondra R. Kruger of the California Supreme Court, who graduated from Yale Law School and served as a law clerk to Justice John Paul Stevens.
Some of Mr. Biden’s supporters have urged him to cast his net wider and to consider candidates without Ivy League degrees or Supreme Court clerkships but with a diversity of experience.
They pointed to, for instance, Judge J. Michelle Childs of the Federal District Court in Columbia, S.C., a graduate of the University of South Carolina’s law school and a former law firm partner who also worked in state government. In December, Mr. Biden said he would name Judge Childs to fill a vacancy on the D.C. Circuit, a sign that she may be a serious contender for Justice Breyer’s seat.
Justice Breyer’s opinions have been those of a moderate liberal, marked by a deference to experts, an ad hoc balancing of competing interests and an alertness to fundamental fairness. His goal, he said, was to reinforce democracy and to supply workable legal principles for a sprawling and diverse nation.
He has been more likely to vote against criminal defendants than other liberal justices. On the other hand, as the years progressed, he has grown increasingly hostile to the death penalty.
He played a starring role in the court’s last term, writing majority opinions rejecting a challenge to the Affordable Care Act and protecting the free speech rights of a high school student. That Chief Justice John G. Roberts Jr. assigned those opinions to him was a reflection of Justice Breyer’s seniority, his willingness to write narrow decisions to achieve broad majorities and, perhaps, an attempt to keep him on the court a little longer.
Other members of the court also turned to Justice Breyer to execute delicate tasks. In 2016, for instance, Justice Anthony M. Kennedy, as the senior justice in the majority, assigned an important abortion opinion to Justice Breyer rather than Justice Ginsburg, probably calculating that the resulting opinion would more likely be modest, technical and acceptable to five justices.
In an interview in August, Justice Breyer said he was struggling with the question of when to step down.
“There are many things that go into a retirement decision,” he said.
He recalled approvingly something Justice Antonin Scalia, who died in 2016, had told him.
“He said, ‘I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years,’” Justice Breyer recalled. “That will inevitably be in the psychology” of his decision, he said.
“I don’t think I’m going to stay there till I die — hope not,” he said.
Over the years, Justice Breyer bristled at the accusation that judges act politically. “My experience of more than 30 years as a judge has shown me that, once men and women take the judicial oath, they take the oath to heart,” he said in April in a lecture at Harvard Law School. “They are loyal to the rule of law, not to the political party that helped to secure their appointment.”
On the bench, his demeanor was professorial, and his rambling questions, often studded with colorful hypotheticals, could be charming or exasperating. But they demonstrated a lively curiosity and an open mind.
If Mr. Biden succeeds in winning confirmation for his nominee to replace Justice Breyer, that justice is very likely to serve for decades.
Some liberals questioned Justice Ginsburg’s decision not to retire during the Obama administration in spite of her advancing age and bouts with cancer. After her death at the age of 87, just six weeks before the 2020 election, Senate Republicans pushed through the confirmation of Justice Barrett over unified Democratic opposition. That gave Mr. Trump a chance to make his third appointment to the court, cementing a 6-to-3 conservative majority.
Justice Breyer’s decision to step down may have been influenced by Justice Ginsburg’s experience.
Michael S. Schmidt contributed reporting.
