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Resignation of Stephen Breyer from the U.S. Supreme Court

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Supreme Court vacancy, 2022
Ketanjijackson2.jpeg
Nominee
Ketanji Brown Jackson
Former Justice
Stephen Breyer
Coverage
Supreme Court vacancy, 2022
Ketanji Brown Jackson confirmation hearings
Process to fill the vacated seat of Justice Stephen Breyer
Resignation of Stephen Breyer from the U.S. Supreme Court
Past vacancies:

Stephen Breyer retired from the United States Supreme Court on June 30, 2022.[1] Breyer officially announced his intention to retire on January 27.[2][3]

On June 30, after Breyer's retirement took effect, Ketanji Brown Jackson was sworn in to fill the vacancy on the court.[1][4] President Joe Biden (D) announced he would nominate Jackson to fill Breyer's vacancy on February 25.[5] Jackson was confirmed by the Senate in a 53-47 vote on April 7, 2022.[6]

Writing for SCOTUSblog, Amy Howe called Breyer "a devoted pragmatist and the senior member of the Supreme Court’s liberal wing." Regarding Breyer's decision to retire, Howe wrote: "Although Breyer is apparently in good health and by all accounts enjoys his job, Democrats began calling for him to retire shortly after the 2020 election so that President Joe Biden could nominate a younger judge to take his place."[7]

President Bill Clinton (D) nominated Breyer to the Supreme Court in 1994, and the Senate confirmed him to the court the same year.[8] Breyer served on the United States Court of Appeals for the 1st Circuit from 1980 to 1994 and was chief judge in his final four years there. He began his legal career clerking for Supreme Court Justice Arthur Goldberg and held several government attorney roles, including assistant special prosecutor on the Watergate Special Prosecution Force and the chief counsel of the U.S. Senate Judiciary Committee.[9]

Article II, Section 2 of the U.S. Constitution gives the President of the United States the authority to nominate Supreme Court justices, and they are appointed with the advice and consent of the Senate.

The average vacancy length on the Supreme Court since 1962—when defined as the length of time elapsed between a Justice’s departure date and the swearing-in of their successor—is 86 days. Four of these vacancies lasted for only a few hours each, with the successor being sworn in the same day the retiring Justice officially left office. The longest vacancy under this definition was 422 days, following the death of Justice Antonin Scalia.

This page covers Breyer's resignation. To read more about the United States Supreme Court vacancy, click here.

Timeline

The following timeline lists major events following the announcement of Justice Stephen Breyer's retirement.

  • June 30, 2022: Breyer's retirement took effect. Jackson was sworn in.
  • June 29, 2022:
    • Breyer announced his retirement would take effect on June 30.[1]
    • The court announced Jackson would be sworn in on June 30.[4]
  • April 8, 2022: Biden signed Jackson's commission.[10]
  • April 7, 2022: The Senate voted 53-47 to confirm Jackson to the Supreme Court.[6]
  • April 4, 2022:
    • The Senate Judiciary Committee voted 11-11 along party lines on whether to advance Jackson's nomination. Under an organizing resolution passed at the beginning of the 117th Congress, if a judicial nominee received a tie vote in committee, his or her nomination could be advanced by a vote from the full Senate. The Senate voted 53-47 to advance Jackson's nomination.[11]
    • Sens. Lisa Murkowski (R-Alaska) and Mitt Romney (R-Utah) announced they planned to support Jackson's nomination.[12]
  • March 29, 2022: Sen. Susan Collins (R-Maine) said she planned to support Jackson's nomination. Collins was the first Republican senator to announce she intended to vote yes on the Jackson nomination.[13]
  • March 28, 2022: The Senate Judiciary Committee met to discuss Jackson's nomination.[14]
  • March 24, 2022: Jackson's Senate confirmation hearings ended.
  • March 23, 2022: Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) announced the committee would vote on advancing Jackson's nomination on April 4.[15]
  • March 21, 2022: Jackson's Senate confirmation hearings began.
  • March 2, 2022:
  • March 1, 2022: The Senate Judiciary Committee released Jackson's nominee questionnaire.[18]
  • February 28, 2022: The Senate received Jackson's nomination.[11]
  • February 27, 2022: Chairman of the Senate Judiciary Committee Dick Durbin (D-Ill.) said he had transmitted the Supreme Court nominee questionnaire to the White House.[19]
  • February 25, 2022:
  • February 22, 2022: CNN reported that Biden had interviewed J. Michelle Childs, Leondra Kruger, and Ketanji Brown Jackson.[22]
  • February 13, 2022: Sen. Ben Ray Luján (D-N.M.) said he would return to the Senate to vote for Biden's Supreme Court nominee. He said he would be returning from medical leave in a few weeks.[23]
  • January 27, 2022: President Joe Biden (D) and Breyer officially announced Breyer would retire at the start of the court's summer recess, which typically takes place in late June or early July. Biden said he would announce a nominee by the end of February.[24][25]
  • January 26, 2022: NBC News reported that Justice Stephen Breyer would retire from the Supreme Court after the end of the 2021-2022 term.[26]


Official statements regarding the retirement of Stephen Breyer

The section below provides official statements from noteworthy individuals regarding the retirement of Justice Stephen Breyer.

Grey.png Stephen Breyer

Official resignation letter

“

Dear Mr. President,

I am writing to tell you that I have decided to retire from regular active judicial service as an Associate Justice of the Supreme Court of the United States, and to serve under the provisions of 28 U.S.C § 371(b). I intend this decision to take effect when the Court rises for the summer recess this year (typically late June or early July) assuming that by then my successor has been nominated and confirmed.

I enormously appreciate the privilege of serving as part of the federal judicial system - nearly 14 years as a Court of Appeals Judge and nearly 28 years as a Member of the Supreme Court. I have found the work challenging and meaningful. My relations with each of my colleagues have been warm and friendly. Throughout, I have been aware of the great honor of participating as a judge in the effort to maintain our Constitution and the rule of law.

Yours sincerely,
Stephen Breyer[27][28]

”

Official announcement remarks

“

I thought about what I might say to you, and I'd like to say: something I enjoy is talking to high school students, grammar school students, college school students, even law school students. And they'll come around and ask me, "What is it you find particularly meaningful about your job? What sort of gives you a thrill?" And that's not such a tough question for me to answer. It's the same thing, day one, almost, up to day I don't know how many. What I say to them is look, I sit there on the bench and after we hear lots of cases, it takes a while I have to admit, but the impression you get, as you well know, this is a complicated country. There are more than 330 million people, and as my mother used to say, it's every race, it's every religion, and she would emphasize this, and it's every point of view possible. It's a kind of miracle. When you sit there and see all those people in front of you, people that are so different in what they think, and yet they're decided to help solve their major differences under law. And when the students get too cynical, I say go look at what happens in countries that don't do that. People have come to accept this constitution and they've come to accept the importance of a rule of law.

And I want to make another point to them. I want to say, look, of course people don't agree, but we have a country that is based on human rights, democracy, and so forth. But I'll tell you what Lincoln thought, what Washington thought, and what people today still think: It's an experiment. It's an experiment, that's what they said. And Joanna paid each of our grandchildren a certain amount of money to memorize the Gettysburg Address. What we want them to pick up there, and what I want the students to pick up, if I can remember the first two lines, is: Four score and seven years ago our fathers created here a new country, a country that was dedicated to liberty and the proposition that all men are created equal. Conceived in liberty, those are his words, and dedicated to the proposition that all men are created equal. He meant women too. And, we are now engaged in a great civil war to determine whether that nation, or any nation so conceived and so dedicated can long endure. See, those are the words I want. To see. An experiment. And that's what he thought. It's an experiment. And I found some letters that George Washington wrote where he said the same thing. It's an experiment. That experiment existed then because even the liberals in Europe, they're looking over here and saying it's a great idea in principle, but it'll never work. But we'll show them it does. That's what Washington thought. And that's what Lincoln thought. And that's what people still think today.

And I say I want you, I'm talking to the students now, I want you to pick just this up. It's an experiment that's still going on. And I'll tell you something, you know who will see whether that experiment works? It's you, my friend. It's you, Mr. High School Student. It's you, Mr. College Student. It's you, Mr. Law School Student. It's us, but it's you. It's that next generation. And the one after that. My grandchildren and their children. They'll determine whether the experiment still works, and of course, I'm an optimist, and I'm pretty sure it will. Does it surprise you? That that's the thought that comes into my mind today? Thank you.[3][28]

”

Democratic Party President Joe Biden (D)

“

I’m here today to express the nation’s gratitude to Justice Stephen Breyer for his remarkable career of public service and his clear-eyed commitment to making our country’s laws work for its people.

And our gratitude extends to Justice Breyer’s family for being partners in his decades of public service. In particular, I want to thank his wife, Dr. Joanna Breyer, who is here today and who has stood by him for nearly six decades, and — with her fierce intellect, good humor, and enormous heart. I want to thank you. The country owes you as well.

And Stephen Breyer’s public service started early. He served in the United States Army as a teenager and in all three branches of the federal government before he turned 40. They were the good old days, weren’t they?

And as — he was a law clerk to Supreme Court Justice Goldberg, a prosecutor in the Department of Justice, a member of the Watergate prosecution team. And I first met Stephen Breyer when I was a senator on the Judiciary Committee and he started off as — taking care of one of the subcommittees for Teddy, but then became Chief Counsel during the tenure as — as Ted’s chairman- — chairmanship of the Judiciary Committee.

Beyond his intellect and hard work and legal insight, he was famous for biking across Washington virtually every day for a face-to-face meeting with a Republican chief counsel — the ranking Republican counsel. And over breakfast, they’d discuss what would they do for the country together. Whereas, in those days, we tried to do things together. They — that spirit stuck with me when I took over the Judiciary Committee as Chair after Senator Kennedy’s tenure.

And it was my honor to vote to confirm Justice Breyer to serve in the United States Supreme Court — the Court of Appeals first, in 1980.

And then, 14 years later, in 1994, I got to preside as Chairman of the Senate Judiciary Committee over his Supreme Court confirmation hearings.

We were joking with one another when he walked in: Did we ever think that he would have served decades on the Court and I’d be President of the United States on the day he came in to retire? And he looked at it — anyway, I won’t tell you what he said. I’m joking.

But I was proud and grateful to be there at the start of this distinguished career on the Supreme Court, and I’m very proud to be here today on his announcement of his retirement.

You know, during his confirmation hearings, way back in 1994, nominee Stephen Breyer said, quote, “The law must work for [the] people.”

He explained to us his faith that our complex legal system has a single purpose: to help the people who make up our country. It was a different time, of course. But his brilliance, his values, his scholarship are why Judge Breyer became Justice Breyer by an overwhelming bipartisan vote at the time.

Today, Justice Breyer announces his intention to step down from active service after four decades — four decades on the federal bench and 28 years on the United States Supreme Court.

His legacy includes his work as a leading scholar and jurist in administrative law, bringing his brilliance to bear to make the government run more efficiently and effectively.

It includes his stature as a beacon of wisdom on our Constitution and what it means.

And through it all, Justice Breyer has worked tirelessly to give faith to the notion that the law exists to help the people.

Everyone knows that Stephen Breyer has been an exemplary justice — fair to the parties before him, courteous to his colleagues, careful in his reasoning.

He’s written landmark opinions on topics ranging from reproductive rights to healthcare, to voting rights, to patent laws, to laws protecting our environment, and the laws that protect our religious practices.

His opinions are practical, sensible, and nuanced. It reflects his belief that a job of a judge is not to lay down a rule, but to get it right — to get it right.

Justice Breyer’s law clerks and his colleagues, as many of the press here know, describe him and his work ethic — his desire to learn more, his kindness to those around him, and his optimism for the promise of our country. And he has patiently sought common ground and built consensus, seeking to bring the Court together.

I think he’s a model public servant in a time of great division in this country. Justice Breyer has been everything his country could have asked of him.

And he’s appeared before — when he appeared before the Judiciary Committee almost three decades ago, we all had high hopes for the mark he would leave on history, the law, and the Constitution. And he’s exceeded those hopes in every possible way.

Today is his day — our day to commend his — his life of service and his life on the Court. But let me say a few words about the critically important work of selecting his successor.

Choosing someone to sit on the Supreme Court, I believe, is one of the most serious constitutional responsibilities a President has. Our process is going to be rigorous. I will select a nominee worthy of Justice Breyer’s legacy of excellence and decency.

While I’ve been studying candidates’ backgrounds and writings, I’ve made no decisions except one: The person I will nominate will be someone with extraordinary qualifications, character, experience, and integrity, and that person will be the first Black woman ever nominated to the United States Supreme Court.

It’s long overdue, in my view. I made that commitment during the campaign for President, and I will keep that commitment.

I will fully do what I said I’d do: I will fulfill my duty to select a justice not only with the Senate’s consent, but with its advice.

You’ve heard me say in other nomination processes that the Constitution says seek the “advice and consent,” but the advice as well of the Senate. I’m going to invite senators from both parties to offer their ideas and points of view.

I’ll also consult with leading scholars and lawyers. And I am fortunate to have advising me in this selection process Vice President Kamala Harris. She’s an exceptional lawyer, a former Attorney General of the State of California, a former member of the Senate Judiciary Committee.

I will listen carefully to all the advice I’m given, and I will study the records and former cases carefully. I’ll meet with the potential nominees. And it is my intention — my intention to announce my decision before the end of February.

I have made no choice at this point. Once I select a nominee, I’ll ask the Senate to move promptly on my choice.

In the end, I will nominate a historic candidate, someone who is worthy of Justice Breyer’s legacy and someone who, like Justice Breyer, will provide incredible service on the United States Supreme Court.

Justice Breyer, on behalf of all the American people, I want to thank you and your family — and your family for your tremendous service to our nation.[29][28]

”

Congressional leadership

Democratic Party Senate Majority Leader Chuck Schumer (D-N.Y.)

“ For virtually his entire adult life, including a quarter century on the U.S. Supreme Court, Stephen 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. His work and his decisions as an Associate Justice on the biggest issues of our time – including voting rights, the environment, women’s reproductive freedom, and most recently, health care and the Affordable Care Act – were hugely consequential. America owes Justice Breyer an enormous debt of gratitude.[30][28] ”

Republican Party Senate Minority Leader Mitch McConnell (R-Ky.)

“ I congratulate Justice Breyer on nearly three decades of thoughtful and consequential service on the Supreme Court, capping forty-plus years of total service on the federal bench.


Justice Breyer commands respect and affection across the legal world, including from those who disagree with his judicial philosophy and conclusions in cases. This respect is rooted in Justice Breyer’s intelligence, rigor, and good-faith scholarly engagement. By all accounts, both personally and professionally, he has rendered exemplary service on our nation’s highest Court.

Justice Breyer’s commitment to the importance of a nonpartisan, non-politicized judiciary has been especially admirable. Even in the face of undue criticism from the modern political left, Justice Breyer has remained a principled voice against destructive proposals such as partisan court-packing that would shatter public trust in the rule of law.

I congratulate Justice Breyer, his wife Joanna, their children, and their entire family as the Breyers prepare to close this remarkable chapter and begin the next.[31][28]

”

Democratic Party House Speaker Nancy Pelosi (D-Calif.)

“ When Justice Stephen Breyer departs from the bench, the Supreme Court and the Country will lose a leader of honor and integrity, a defender of liberty, justice and the Constitution, and a guardian of our fundamental rights. At the ceremony with President Biden this morning announcing his departure from the Court, Justice Breyer’s remarks were patriotic, inspiring and confident in America’s future.


Justice Breyer has championed liberty not merely as freedom from oppression, but as freedom to participate fully in our democracy – paving the way for great progress in our nation. His important rulings have expanded the promise of freedom, whether protecting women’s reproductive freedoms, ensuring that all are equally represented in the Census, or upholding the constitutionality of the Affordable Care Act and the transformational protections it provides every American. His respect for the legislative judgments of Congress has upheld and strengthened the balance of powers that is a cornerstone of our Constitution. With his abiding faith in civic participation, and committed engagement with young people and students, Justice Breyer has helped ensure that our democracy does, as our Founders intended, work For The People.

For his legal brilliance, his unwavering integrity and his firm devotion to safeguarding our democracy, Justice Breyer will leave a remarkable legacy. As a native son of San Francisco, our city takes extraordinary pride in Justice Breyer’s more than four decades of distinguished service on the federal bench. We thank the Breyer family for sharing him with the Country.[32][28]

”

Supreme Court justices

Grey.png Justice John Roberts

“ Justice Stephen G. Breyer is an energetic jurist and dear friend. He has rendered nearly half a century of distinguished public service to our country, including 42 years as a federal judge—27 as a Member of this Court. His pragmatism, encyclopedic knowledge, and varied government experience have enriched the Court’s deliberations. And his fanciful hypotheticals during oral argument have befuddled counsel and colleagues alike.

Justice Breyer’s optimism and profound love of country, expressed through word and deed, have inspired countless others. He is a tireless and powerful advocate for the rule of law—in the United States and abroad.

He is also a reliable antidote to dead airtime at our lunches, moving seamlessly from modern architecture to French cinema, to old radio shows, to a surprisingly comprehensive collection of riddles and knock-knock jokes. He and his wife Joanna enliven every gathering of the Court family. I look forward to being with Justice Breyer on the bench through the end of the sitting, and Jane and I look forward to seeing him and Joanna often in the years ahead.[33][28]

”

Grey.png Justice Clarence Thomas

“ When Justice Breyer arrived at the Court almost thirty years ago, we gained a wonderful colleague. As he retires from active duty on the Court, he and Joanna will always be two dear friends. It has been an absolute joy to have spent these years with them, from sitting next to each other on the bench for over twenty-five years to visiting with them in New England. Virginia and I will continue to hold fast to the countless memories we have already accumulated over these many years and look forward to creating even more with them. Though Justice Breyer’s tenure on the Court draws to a close, our friendship and deep affection redoubles and endures. We extend our fondest wishes to them in the next phase of their lives, and we thank them from the bottom of our hearts for being such delightful and dear friends whom we love.[33][28] ”

Grey.png Justice Samuel Alito

“ I will greatly miss Steve when he leaves the Court. He has been a delightful colleague—brilliant, erudite, friendly, good-natured, and funny. I will miss his unique questions at argument, his valuable contributions at conference, his insightful opinions, his amusing observations at lunch, and our many fascinating conversations on a wide range of subjects. He and Joanna have worked hard and effectively to promote a congenial atmosphere at the Court. His retirement is a great loss for us, and I wish Steve and Joanna much happiness and satisfaction in the next chapter of their lives.[33][28] ”

Grey.png Justice Sonia Sotomayor

“ My dear friend, Steve Breyer, is leaving the Court after 42 distinguished years of service to the judiciary and to the country. I will miss him. He is brilliant, passionate about the law, and dedicated to the Court. He is funny, optimistic, and giving. We all will miss his commitment to seeking consensus and ensuring collegiality in all we do. He has served the country with honor. I wish him and his beloved wife, Dr. Joanna Breyer, much joy in the years ahead. I know that both of them will continue to make significant contributions to the country’s wellbeing.[33][28] ”

Grey.png Justice Elena Kagan

“ I’ll miss Steve Breyer every day after he has left the Court. He is a brilliant and wise judge whose vision of law will remain of great importance. He is the best possible colleague. He believes in making institutions work; to strengthen this one, he listens to other views with care and generosity, and does everything he can to find common ground. And he is the best possible friend. He is kind and warm and funny. He has boundless optimism and a great heart. I can hardly imagine the Court without him.[33][28] ”

Grey.png Justice Neil Gorsuch

“ For more than 40 years, Justice Breyer has served the Judiciary with integrity and grace. His deep knowledge of our law, its history, and our government is profound. His good humor is legendary. I will very much miss his wisdom—and his wit—at our conference table. He and Joanna have been fast friends to Louise and me and we hope to see them often as friends for many years to come. We wish them and their wonderful family every happiness.[33][28] ”

Grey.png Justice Brett Kavanaugh

“ I will deeply and daily miss Justice Breyer. He has made the Court and America better. He has been an inspiring presence in the courtroom and conference room, at the lunch table and in chambers. Steve Breyer is a scholar and gentleman, an independent judge and fierce patriot, a man of great wisdom and humor, a collegial consensus-builder and unfailing optimist. He understands how government works for the people, and he has always strived to make it work better, in a good-faith and nonpartisan way. He has sought to stand in the shoes of others and to understand their perspective. Ashley and I are very grateful to Joanna and Steve for warmly welcoming us to the Court family four years ago. We look forward to continuing our friendship with both of them, and we wish them all the best as they start a new chapter in their remarkable journey together.[33][28] ”

Grey.png Justice Amy Coney Barrett

“ I admire Steve Breyer for many reasons, not least of which is his judicial temperament. Steve feels passionately about the law, as his many writings reflect. Yet his passion never manifests itself in anger. Both in print and in person, Steve aims to persuade through exuberance rather than bite. He is a model of civility. And in my time on the Court, he has also become my valued colleague and friend. I am grateful for his warm welcome, sage counsel, and sense of humor. Joanna, too, has been incredibly gracious to both me and my family. While I will greatly miss my day-to-day interactions with Steve, I look forward to many more years of friendship with the Breyers.[33][28] ”

Process to fill the seat

Although the rules for appointing and confirming a U.S. Supreme Court justice are set out in the U.S. Constitution, the process for choosing nominees is not codified in law. Past presidents have received lists of recommendations from the White House counsel, the attorney general and lawyers in the Justice Department's Office of Legal Counsel. Justices have often been friends or acquaintances who shared ideological views with the president.[34]

The nominating process is also influenced by individuals and organizations outside of the administration. The American Bar Association (ABA), through its 15-member Committee on Federal Judiciary, rates nominees as "well qualified," "qualified" or "not qualified." Others also lobby the president to choose nominees sympathetic to their views or to oppose those with whom they differ.[35]

Presidents have occasionally had a key position that a prospective justice must hold to be considered for nomination. Such positions are typically on an important social issue. But a nominee's views do not always conform to their future opinions. Some justices have ruled in ways that surprised the presidents who nominated them. Notable examples are Justice Tom C. Clark (nominated by President Harry S. Truman), Chief Justice Earl Warren (nominated by President Dwight D. Eisenhower) and Justice David Souter (nominated by President George H. W. Bush).[36]

Supreme Court confirmation

  • The usual nomination process starts with the president choosing a nominee. It is not uncommon for the president to consult Senate leadership and the leaders of the Senate Judiciary Committee before deciding on a nominee.[37][38]
  • The Senate Judiciary Committee then considers the nominee. The committee conducts a rigorous investigation into the nominee’s background, gleaning a sense of his or her judicial philosophy and temperament, which helps inform whether the senator will support the nominee. During this part of the process, the American Bar Association's Standing Committee on Federal Judiciary reviews the nominee. The nominee also visits with senators in their offices in order to help win support for nomination. The most public aspect of the process is when the nominee testifies before the Judiciary Committee and takes questions. The hearing, which is kept open at the discretion of the chairman, can last more than a day, as members, particularly opponents, verbally spar with the nominee. Having the nominee appear before the committee became a part of the process beginning with the nomination of John M. Harlan in 1955. The first televised Supreme Court nomination hearing took place in 1981 for Sandra Day O’Connor.[37][38]
  • The Senate Judiciary Committee holds a vote on the nominee, typically a week after the hearing is adjourned. The committee’s practice has been to send the nomination, whether or not the nominee wins a majority, to the full Senate to allow the chamber to decide whether he or she should be confirmed.[37][38]
  • The debate in the Senate is scheduled by the Senate majority leader in consultation with the minority leader, and a confirmation vote is held. On April 6, 2017, during the process of confirming Justice Neil Gorsuch to the Supreme Court, the Senate lowered the threshold to close debate on Supreme Court nominations to a simple majority from 60 votes. According to the Congressional Research Service, "The practical effect of the Senate action on April 6 was to reduce the level of Senate support necessary to confirm a Supreme Court nominee."[37][39]
  • The president also may choose to make a recess appointment, which would avoid the need for Senate confirmation. But the justice's term would end with the end of the next session of Congress, rather than the lifetime appointments provided by Senate confirmation. There have been 12 recess appointments made to the Supreme Court, most in the 19th century, according to the Congressional Research Service. The most recent was made by President Dwight D. Eisenhower, who gave Justice Potter Stewart a recess appointment on October 14, 1958, to a seat vacated by Justice Harold Burton. Justice Stewart was nominated by Eisenhower to the same seat on January 17, 1959, and was confirmed by the U.S. Senate on May 5, 1959.[37][38][40]

Historic context

Vacancies: departure date to swearing-in of successor

The average vacancy length on the Supreme Court since 1962—when defined as the length of time elapsed between a Justice’s departure date and the swearing-in of their successor into the position—is 86 days. Four of these vacancies lasted for only a few hours each; the successor was sworn in the same day the retiring Justice officially left office. The longest vacancy under this definition was 422 days, following the death of Justice Antonin Scalia.

The second longest vacancy in that time was 391 days after Justice Abe Fortas retired on May 14, 1969, in the wake of a series of ethics scandals.[41] First-term president Richard Nixon (R) nominated two different successors for Fortas—Clement Haynsworth, a Fourth Circuit Appeals Judge, and Harold Carswell, a Fifth Circuit Appeals Judge. The Senate rejected both. Nixon’s third nominee, Eighth Circuit Appeals Judge Harry Blackmun, was confirmed on May 12, 1970, and sworn in on June 9, 1970—391 days, after Fortas’ retirement.[42]

The third longest vacancy in this time frame was between the terms of Lewis Franklin Powell and Anthony Kennedy. Powell retired on June 26, 1987. The Senate confirmed Kennedy on February 3, 1988. He was sworn in on February 18, 1988, making for a 237 day vacancy from Powell's retirement to Kennedy's swearing-in. Like Blackmun, Kennedy’s confirmation by the Senate followed two rejections. President Ronald Reagan (R) nominated him on November 30, 1987.[43]

Vacancies: departure date to confirmation of successor

When vacancy is defined as the length of time between a Justice’s departure date and the confirmation date of their successor, the average is 76 days. The vacancies between Scalia and Gorsuch and Fortas and Blackmun are still the longest, at 419 and 363 days, respectively. The third longest is between Lewis Powell and Anthony Kennedy, at 222 days.

Vacancies: announcement of retirement to confirmation of successor

When vacancy is defined as the length of time between the date at which a Justice announced his or her retirement and the confirmation date of their successor, the average length is 132 days. The longest vacancy is, again, between the terms of Scalia and Gorsuch at 419 days, followed by Fortas and Blackmun at 363 days. But the third longest, under this definition, is between the terms of Earl Warren and Warren Burger, at 361 days. Warren announced his retirement on June 13, 1968, almost a year before he officially left the bench on June 23, 1969.

In cases where a Justice died and no retirement announcement took place, we used their departure date. On several occasions, Justices officially retired on the same day as their announcement.

Vacancies prior to 1962

Prior to the 1960’s, there were two much longer vacancies on the Court. A seat sat vacant for almost two-and-a-half years during the presidencies of John Tyler and James K. Polk in the mid-19th century. Justice Henry Baldwin died in office on April 21, 1844. His eventual successor, Robert Grier, was confirmed by the Senate and sworn into office on the same day, August 10, 1846. In the interim, the Senate rejected four nominees. Another lengthy vacancy took place following the death of Justice Peter Daniel on May 31, 1860. Daniel’s seat was left unoccupied until President Abraham Lincoln’s (R) nominee, Samuel Miller, was confirmed and sworn in on July 21, 1862.[44]


See also

Footnotes

  1. ↑ 1.0 1.1 1.2 The Hill, "Justice Breyer set to retire from Supreme Court on Thursday," June 29, 2022
  2. ↑ United States Supreme Court, "Letter to President," January 27, 2022
  3. ↑ 3.0 3.1 YouTube, "President Biden Delivers Remarks on the Retirement of Supreme Court Justice Stephen Breyer," January 27, 2022
  4. ↑ 4.0 4.1 The Washington Post, "Jackson to take Supreme Court oath Thurs., minutes after Breyer retires," June 29, 2022
  5. ↑ White House, "President Biden Nominates Judge Ketanji Brown Jackson to Serve as Associate Justice of the U.S. Supreme Court," February 25, 2022
  6. ↑ 6.0 6.1 Congress.gov, "PN1783 — Ketanji Brown Jackson — Supreme Court of the United States," accessed April 7, 2022
  7. ↑ SCOTUSblog, "Stephen Breyer, pragmatic liberal, will retire at end of term," January 26, 2022
  8. ↑ Ken I. Kersch, "Justice Breyer's Mandarin Liberty," accessed April 14, 2021
  9. ↑ Oyez, "Stephen G. Breyer," accessed April 14, 2021
  10. ↑ Bloomberg, "Biden Signs Jackson’s Supreme Court Commission Early in Unusual Move," April 19, 2022
  11. ↑ 11.0 11.1 Congress, "PN1783 — Ketanji Brown Jackson — Supreme Court of the United States," accessed March 1, 2022
  12. ↑ Axios, "Murkowski, Romney announce support for Ketanji Brown Jackson nomination," April 4, 2022
  13. ↑ New York Times, "Collins to Back Jackson for Supreme Court, Giving Her a G.O.P. Vote," March 30, 2022
  14. ↑ Senate Judiciary Committee, "Executive Business Meeting," March 28, 2022
  15. ↑ The Hill, "Senate panel to hold Supreme Court vote April 4," March 23, 2022
  16. ↑ Associated Press, "Supreme Court nominee Ketanji Brown Jackson heading to Capitol Hill," March 2, 2022
  17. ↑ Senate Judiciary Committee, "Durbin Meets With Supreme Court Nominee Judge Ketanji Brown Jackson," March 2, 2022
  18. ↑ CNN, "New Senate questionnaire details Judge Ketanji Brown Jackson's White House contacts during nomination process," March 1, 2022
  19. ↑ NBC News, "Senate begins work on confirming Jackson to Supreme Court as some in GOP voice openness," February 28, 2022
  20. ↑ White House, "President Biden Nominates Judge Ketanji Brown Jackson to Serve as Associate Justice of the U.S. Supreme Court," February 25, 2022
  21. ↑ Associated Press, "AP sources: Biden taps Ketanji Brown Jackson for high court," Feb. 25, 2022
  22. ↑ CNN, "Biden has met with at least three potential Supreme Court nominees; announcement expected soon," February 22, 2022
  23. ↑ Twitter, "Senator Ben Ray Luján," February 13, 2022
  24. ↑ YouTube, "President Biden Delivers Remarks on the Retirement of Supreme Court Justice Stephen Breyer," January 27, 2022
  25. ↑ United States Supreme Court, "Letter to President," January 27, 2022
  26. ↑ NBC News, "Justice Stephen Breyer to retire from Supreme Court, paving way for Biden appointment," January 26, 2022
  27. ↑ Supreme Court of the United States, "Letter to President," January 27, 2022
  28. ↑ 28.00 28.01 28.02 28.03 28.04 28.05 28.06 28.07 28.08 28.09 28.10 28.11 28.12 28.13 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  29. ↑ The White House, "Remarks by President Biden on the Retirement of Supreme Court Justice Stephen Breyer," January 27, 2022
  30. ↑ Senate Democrats, "Schumer Statement On The Retirement Of Supreme Court Justice Stephen Breyer," January 26, 2022
  31. ↑ Senate Republican Leader, "McConnell on Justice Breyer’s Announced Retirement," January 27, 2022
  32. ↑ Speaker of the House, "Pelosi Statement on Retirement of Supreme Court Justice Stephen Breyer," January 27, 2022
  33. ↑ 33.0 33.1 33.2 33.3 33.4 33.5 33.6 33.7 Supreme Court of the United States, "Statements from the Supreme Court Regarding Justice Stephen G. Breyer's Retirement," January 27, 2022
  34. ↑ NBC News, "A guide to the Supreme Court nomination," accessed February 13, 2016
  35. ↑ CQ Press, "The Selection and Confirmation of Justices: Criteria and Process," accessed February 13, 2016
  36. ↑ New York Times, "Presidents, Picking Justices, Can Have Backfires," July 5, 2005
  37. ↑ 37.0 37.1 37.2 37.3 37.4 CRS Report for Congress, "Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate," July 6, 2005
  38. ↑ 38.0 38.1 38.2 38.3 CRS Report, "Senate Consideration of Presidential Nominations: Committee and Floor Procedure," March 9, 2015
  39. ↑ [https://fas.org/sgp/crs/misc/R44819.pdf Congressional Research Service, "Senate Proceedings Establishing Majority Cloture for Supreme Court Nominations: In Brief," April 14, 2017]
  40. ↑ Federal Judicial Center, "Biographical directory of federal judges," accessed January 26, 2017
  41. ↑ New York Times, "He could never have enough," July 31, 1988
  42. ↑ Politico, "Republicans, Beware the Abe Fortas Precedent," February 15, 2016
  43. ↑ ScotusBlog.com, "Supreme Court vacancies in presidential election years," February 13, 2016
  44. ↑ C.Q. Press (2010). American Political Leaders: 1789 - 2009, Washington, DC: C.Q. Press
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