Progressives are encouraging Justice Stephen Breyer to resign in hopes that President Joe Biden will appoint the first Black woman to the Supreme Court.

Breyer, 82, is known for his progressive rulings and opposition to the originalist approach to the Constitution. He politically aligned with Democrats and often agreed with former Justice Ruth Bader Ginsburg and Justice Elena Kagan.

During the previous administration, former President Donald Trump nominated three judges to the court, creating a conservative majority. 

After the controversy of confirming Justice Amy Coney Barrett within weeks of the 2020 general election, politicians wondered whether Biden would “pack the court”, when a President appoints several judges of a certain political group, to outweigh the new conservative majority. 

However, activists are now encouraging Breyer to retire in order to open up a new seat.

Biden said in his campaign that he would appoint a Black woman to the Supreme Court during his presidency. Demand Justice, an organization dedicated to court reform, created a list of potential candidates Biden could appoint.

Their list includes Michelle Alexander, Cheri Beasley, Ketanji Brown Johnson and Sherrilyn Ifill. Biden recently appointed Johnson to fill a seat in the D.C. Court of Appeals which is creating a buzz about a potential Supreme Court nomination later in her career. 

“[Our] Supreme Court shortlist illustrates the breadth of progressive talent available to a president committed to nominating a diverse group of justices who have spent their careers fighting to uphold the values of equal justice under the law,” reads Demand Justice’s website. 

In the Supreme Court’s history, 96.5 percent of all justices have been men. While only 5.3 percent of justices have been women or minorities, according to CNN. 

Justice Clarence Thomas is the only active Black justice, his ruling history leaning conservative. He is the second Black man to serve on the court following former Justice Thurgood Marshall.

There has yet to be a Black woman on the Supreme Court. After Vice President Kamala Harris became the first Black and South Asian woman to be elected to office, activists are demanding to expand that diversity into the judicial branch.

Activist organizations such as Women’s March are promoting Breyer’s retirement as well. 

“The time has come for Justice Breyer to retire and pass on the mantle of protecting women’s rights,” Women’s March CEO Rachel O’Leary Carmona said in a statement. “The stakes are too high to wait a moment more. The longer Breyer stays on the Court, the more he risks leaving everything we care about in the hands of Mitch McConnell.”

Now that the court is majority conservative leaning, Carmona wrote how she fears for women’s healthcare and LGBTQ+ rights. People speculated whether Roe vs. Wade, a case granting women access to abortion, could be overturned. 

“In his 27 years on the Court, Justice Breyer has built a legacy of securing and defending women’s rights by enforcing equal justice under the law,” Carmona wrote. “Now, Justice Breyer can cement that legacy by allowing President Biden to appoint the first Black woman to the Supreme Court.”

Several congressmen are in agreement that Breyer should be replaced with someone aligning with his political ideology, according to NPR. This would not change the majority, but could add a more liberal ideology.

“If Justice Breyer is to be committed to his judicial ideology, he is going to want to be replaced on the bench by someone who is going to vote to uphold the fundamental right to vote in this country and to protect the rights of the most marginalized members of our society,” Rep. Mondaire Jones of New York said to NPR.

However, the original purpose of the Supreme Court was to have impartial judges interpreting our Constitution. Despite this, political ambitions have impacted nominations, confirmations and proceedings. To replace a judge with another of the same political alignment as the current administration may be counterintuitive to the original purpose of the court.

Despite the efforts, Jen Psaki, White House press secretary, said it’s Breyer’s choice whether he will retire from the court. 

Biden has not indicated any Supreme Court nominations in the near future.