Jackson will have to wait until either late June or early July before she can take her seat on the Supreme Court because Justice Stephen Breyer is still sitting in it. Breyer didn’t step down immediately when he announced his retirement in January, but instead said that he would leave the court at the end of its current term.
“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,” Breyer wrote to President Biden. “I intend this decision to take effect when the court rises for the summer recess this year … assuming that by then my successor has been nominated and confirmed.”
Breyer’s decision gave Biden and Democrats plenty of time to choose and confirm his successor, which they did Thursday with nearly three months to spare.It’s not unprecedented for a judge to be confirmed while their predecessor is still in their seat. That notably happened on the court Jackson is leaving, the D.C. Circuit Court of Appeals, in 2020 when Judge Justin Walker was confirmed in June, months before his predecessor, Judge Thomas Griffith, retired.
But it is rare for a Supreme Court justice to wait so long to be sworn in after being confirmed.
Justice Amy Coney Barrett was sworn in right away before the 2020 presidential election, as she filled a vacancy that arose after Justice Ruth Bader Ginsburg died. Justice Brett Kavanaugh was also sworn in immediately. He replaced Justice Anthony Kennedy who, like Breyer, retired at the end of a Supreme Court term — except Kennedy didn’t announce his retirement until the court’s term ended.
Justice Neil Gorsuch filled late Justice Antonin Scalia’s seat immediately after he was confirmed and was sworn in shortly after the Senate vote. That seat was open for more than a year because Senate Republicans wouldn’t allow a hearing on Obama nominee Merrick Garland.
The most recent situation that mirrors what Jackson is experiencing may be the confirmation of Justice Samuel Alito under former President George W. Bush.
Justice Sandra Day O’Connor announced her retirement in summer 2005, and Bush nominated current Chief Justice John Roberts to replace her. But shortly after that, former Chief Justice William Rehnquist died, and Bush bumped Roberts up to fill his spot.
Bush then tried unsuccessfully to confirm former White House Counsel Harriet Miers to replace O’Connor, who remained on the bench during the search for her successor. The Senate eventually confirmed Alito in winter 2006.
But still, O’Connor stepped down immediately after Alito was confirmed.
Despite the unusual nature of her situation, in three months, Biden will sign Jackson’s judicial commission, and she will be sworn in as the first ever Black woman to sit on the U.S. Supreme Court.
“This is a long road to equality. We keep trodding on it,” Senate Majority Leader Chuck Schumer, D-N.Y., said Thursday. “Sometimes you take a step back. Today we took a giant step forward. We are elated.”
Fox News’ Chad Pergram contributed to this report.