January 26, 2022

American Constitution Society statement on Justice Breyer's Retirement


Contact: Pablo Willis, pwillis@acslaw.org   

Washington, DCJustice Stephen Breyer’s announcement that he will retire comes as no surprise, but it certainly calls for a moment of reflection, appreciation, and action.

Justice Breyer’s 27 years on the Supreme Court and his 14 years of service on the First Circuit Court of Appeals were marked by the characteristics that define a thoughtful jurist of great intellect and integrity. In his 2006 book Active Liberty, he urged judges to focus on the Constitution’s “democratic objective” and stressed “the importance of [] considering practical consequences” when interpreting the Constitution.

As Russ Feingold, president of ACS, said, “I was pleased to vote for Justice Breyer’s confirmation to the Supreme Court, and I praise his commitment to interpreting the Constitution as a living document, influenced by the context of the times in which we live. I applaud his conviction that our laws and legal systems should protect the lives of all people, and not just the partisan interests of a few.”

We at ACS are grateful for his past appearances at our national convention and hope he will continue to share his wisdom with us in what we know will be a productive retirement.

We urge the Biden-Harris administration to act quickly to nominate a candidate to fill Justice Breyer’s seat, though he can certainly never be replaced, and we urge the Senate to promptly take up that nomination. We look forward to President Biden fulfilling his commitment to nominate a Black woman to the Supreme Court.

The President’s and Senate’s responsibility to fill Justice Breyer’s seat on the Court does not, in any way, remedy the Right’s packing of the Supreme Court or the Court’s resulting legitimacy crisis. Our highest court is currently controlled by a conservative supermajority, achieved exclusively through the Right’s theft of Justices Scalia’s and Ginsburg’s seats, that is increasingly hostile to our constitutional rights and the guardrails of our democracy. To protect the legitimacy of our highest court and of our democracy, we must redress the Right’s packing of the Court. This includes by adding seats to the Supreme Court, ending life tenure in favor of term limits for justices, and restricting the use of the shadow docket.



ACS believes that the Constitution is “of the people, by the people, and for the people.” We interpret the Constitution based on its text and against the backdrop of history and lived experience. Through a diverse nationwide network of progressive lawyers, law students, judges, scholars, and many others, we work to uphold the Constitution in the 21st Century by ensuring that law is a force for protecting our democracy and the public interest and for improving people’s lives. For more information, visit us on Twitter @acslaw.