SCOTUS Odds: Who Replaces Supreme Court Justice Breyer?

Written By Evan Scrimshaw on January 28, 2022
who replaces justice breyer

With the news that Supreme Court Associate Justice Stephen Breyer will be stepping down from his post at the end of this Court’s term, the race for replacing one of the three remaining liberals on the Court has understandably surged to the top of minds. Odds on who replaces Justice Breyer are now available.

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Will Biden Get A New Justice Confirmed This Year?

OutcomeJan. 28, 2022 PriceEquivalent Odds
Yes$0.94-1567
No$0.07+1329

Yes.

It is theoretically possible that there may be some issue with Biden’s first nominee, such that the Senate rejects them (or, announces their intention to do so such that their name is withdrawn), but even if that happens, Biden will eventually get a nominee.

Joe Manchin and Kyrsten Sinema have been loyal votes on judicial nominees throughout the Biden Administration, and Lisa Murkowski and Susan Collins have always used their willingness to vote for SCOTUS nominees of both parties as proof of their bipartisanship.

For Murkowski, voting against a Biden nominee would be a death knell for her chances of re-election, where Alaska’s RCV system and her strong, Trump-endorsed challenger means she needs Democratic votes to win again. Voting against a Biden nominee would sink her chances of getting the votes she needs.

It’s a stiff price but it’s free money. Take it.

Who Replaces Justice Breyer?

CandidateJan. 28, 2022 PriceEquivalent Odds
K. Brown Jackson$0.63-170
J. Michelle Childs$0.19+426
Leondra Kruger$0.16+525
C. Jackson-Akiwumi$0.04+2400
Wilhelmina Wright$0.03+3233
Kamala Harris$0.02+4900

*All other candidates priced at $0.01

Ketanji Brown Jackson

A member of the DC Court of Appeals and the frontrunner for the position, Jackson was a former public defender and a leading candidate for those hoping for a more vocally liberal voice on the court.

Her work on cases involving Donald Trump and her background make her a leading contender, as does the fact that the DC Court of Appeals is often viewed as a pipeline for Supreme Court justices.

Leondra Kruger

A Justice on the California state Supreme Court, she was approached by the Biden Administration to be Solicitor General, a role she refused to stay on the Court. Seen as more moderate than Jackson, Kruger used to clerk for John Paul Stevens, meaning she has the requisite understanding of the Court to be considered on the shortlist.

J. Michelle Childs

A favorite of House Majority Whip Jim Clyburn, Childs was nominated to the DC Court of Appeals in December 2021, but has not yet been confirmed. The only contender not educated in Ivy League institutions, Childs would be an outlier due to her educational background and not having been on a Circuit Court of Appeals or a State Supreme Court.

Analyzing The Field

Childs isn’t going to be the next nominee, and we can be fairly confident in that fact. A Clyburn favorite because of their shared South Carolina heritage, Clyburn’s advocacy has gotten her a spot on the shortlist, and she is a leading contender for the next opening – a serious victory for someone who has yet to even be confirmed to a Circuit Court of Appeals.

In many ways, Childs is to this nomination what Amy Coney Barrett was to the 2018 SCOTUS nomination – the obvious next in line who would not be named for that seat, but the next one that their party got to fill would be Barrett. As it ended up, Barrett did of course fill the seat formerly held by Ruth Bader Ginsburg in 2020.

The notion that Kamala Harris – or any other supposed contender – would be named to the seat should not be given the time of day, as the White House has confirmed it will be a judge who takes the seat. Additionally, Harris would have to resign the Vice Presidency before her hypothetical nomination, which would mean in a tied Senate, the GOP would have veto power over her replacement, as there would be no tiebreaker.

So, if it comes down to Jackson and Kruger, then how can we tell who it will be? The answer is pretty simple, and the explanation for it tells us it’s probably going to be Jackson.

Since Ruth Bader Ginsburg’s 2020 death, the Supreme Court has been without the leading liberal voice on the Court, and after the way that her replacement was handled, there is little appetite on the left for moderation.

After denying Merrick Garland a confirmation hearing or a vote in 2016, ostensibly on the basis of the election season having started, the Mitch McConnell-led Senate then voted on Amy Coney Barrett in October of an election year, replacing the court’s liberal icon with a former Notre Dame professor.

Regardless of the obvious legality of the moves made by the McConnell Senate, Democrats and liberals have felt cheated by the outcome of Ginsburg not being able to survive through the Presidential contest, and will want the next Democratic appointment to be an unapologetic fighter in the mould of Ginsburg. And, in that, it’s clearly Jackson.

Kruger is a fine jurist by any set of qualifications or metrics, but her nomination would be a continuation of Democratic moderation when the base of the party wants more than that. Unless there are issues in Jackson’s past that make her nomination untenable, her nomination would be a substantial surprise.

That risk is not non-existent – Jackson has a historical affiliation with a religious school with a history of (amongst other things) homophobic views, which could cause strife when brought to the broader attention of the public.

That said, clearly Biden and his team find that history to be uncontroversial enough to warrant her nomination last year to the DC Court of Appeals, and assuming she does not share those views, it would be easily dealt with in her confirmation by her making a strong statement in support of Obergefell, the case which legalized gay marriage across the US.

In many ways, who replaces Justice Breyer and the coming confirmation feels like the Democratic equivalent of the Coney Barrett confirmation in one clear way – Coney Barrett was the favorite, and there was a series of articles and rumors suggesting that she would not be the nominee, and that the Trump Administration would go another way on the matter. She was, of course, nominated swiftly.

Biden’s team also has form on matters of nominations, making the clear and obvious Kamala Harris VP pick while the media spent months trying desperately to find another viable option (which never came). Just as with ACB, the obvious pick was made then as well, and following that advice here, Jackson’s the clear and obvious bet.

She is not a lock to answer the question of who replaces Justice Breyer, but there is no compelling argument against Jackson, and she is the clear frontrunner for the position. We know Biden and his team are fans, we know she is eminently qualified, and in the context of a political party looking for a fighter for their liberal views, she is the only choice that makes sense.

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