Lambda Legal on the News of Justice Breyer’s Plans to Retire from the U.S. Supreme Court

Today, Sharon McGowan, Lambda Legal Chief Strategy Officer and Legal Director, issued the following statement in response to the news that Justice Stephen Breyer, Associate Justice of the Supreme Court of the United States, plans to retire:

“During his nearly three decades on the Court, Justice Breyer has been a reliable defender of the civil rights of LGBTQ+ people, having helped secure majority decisions in the Supreme Court’s five landmark LGBTQ+ rulings  – Romer v. Evans, Lawrence v. Texas, U.S. v. Windsor, Obergefell v. Hodges, and most recently, Bostock v. Clayton County.  And just last term, Justice Breyer has authored a number of decisions of tremendous significance to the LGBTQ community, including California v. Texas, rebuffing the latest attack on the constitutionality of the Affordable Care Act, and Mahanoy Area School District v. B.L., which affirmed the free speech rights of students while emphasizing the duty of schools to address harassment and bullying.  

“We strongly urge President Biden to select a nominee whose commitment to equal justice under law is beyond question, and whose record demonstrates their understanding that LGBTQ+ people are entitled to the full protection of the Constitution’s guarantees of equality and liberty.  We also note that this retirement presents President Biden with an historic opportunity to address the fact that, for too long, our Supreme Court has not adequately reflected the diversity of the legal profession or our country as a whole.  We look forward to the President honoring his campaign commitment to nominate a Black woman to the Supreme Court, achieving a long overdue “first” for that institution.  

"While we recognize that there will be significant energy devoted to filling this Supreme Court vacancy in the coming weeks and months, we urge the President and the Senate not to lose sight of the importance of filling vacancies in the lower courts, which also fail to reflect the diversity of our country.  As noted in our recent report assessing the first year of the Biden administration, the lack of representation is particularly acute with respect to LGBTQ+ judges on the federal bench, with only 14 openly lesbian or gay federal judges out of 870, a mere 1.6%, and no openly transgender, nonbinary or bisexual judges.  The credibility of our entire judicial system turns in significant part on whether the public can have confidence that all who seek justice will be treated as having equal dignity and worth in the eyes of the law, and for that reason, representation matters as much on the bench as it does in other spheres of life.  

“After 50 years of struggle and sacrifice since Stonewall, our country has come to know LGBTQ+ people and most now recognize our right to equal protection under law.  And yet we know that the forces seeking to rollback those rights are more emboldened than ever before.  All people, including but not limited to those of us who are LGBTQ+, need and deserve judges who will uphold the Constitution, apply its principles fairly, and protect the rights of everyone, not just those with power. The lives of LGBTQ+ people and their families hang in the balance.”