Breyer to retire: A look at the latest vacancy to open on the U.S. Supreme Court

Welcome to the Thursday, January 27, Brew. 

By: David Luchs

Here’s what’s in store for you as you start your day:

  1. Report: U.S. Supreme Court Justice Stephen Breyer to retire; Court accepts three cases for argument
  2. Texas’ U.S. House races to have the fewest candidates per seat this year since at least 2018
  3. Primary season is here! Keep up with the latest developments in Ballotpedia’s Heart of the Primaries

An update based on the report that U.S. Supreme Court Justice Stephen Breyer will retirement; Court accepts three cases for argument

Supreme Court of the United States (SCOTUS) Justice Stephen Breyer will retire at the end of the 2022 term this October, according to media reports Wednesday.

Breyer, a Bill Clinton (D) appointee, has served on the court since 1994. He is one of three justices on the nine-member court to be appointed by a Democratic president.

Breyer’s retirement will be President Joe Biden’s (D) first opportunity to nominate a member to the court; both Donald Trump (R) and Barack Obama (D) nominated three SCOTUS justices while in office. Biden’s nominee will need to receive approval from both the Senate Judiciary Committee and the full U.S. Senate before taking office. 

Democrats currently hold a 50-50 majority in the full Senate, with Vice President Kamala Harris (D) casting the tie-breaking vote. Control of the committee is split 11-11. Under the organizing resolution the U.S. Senate adopted at the beginning of the current Congress, a tied vote in committee will not prevent a nomination from advancing to the full Senate.

President Biden will not need to wait for Justice Breyer’s retirement to take effect before selecting a nominee, giving Democrats time to confirm a successor ahead of the November elections. In the 15 Supreme Court vacancies that have opened since 1975, an average 76 days elapsed between the outgoing justice leaving office and a successor taking their place.

In other SCOTUS-related news, the court accepted three cases for argument during its October 2022-2023 term on Jan. 24. These are the first cases SCOTUS has granted for its next term scheduled to begin Oct. 3, 2022.

  1. Students for Fair Admissions, Inc. v. President & Fellows of Harvard (Consolidated with Students for Fair Admissions, Inc. v. University of North Carolina)
  2. Axon Enterprise, Inc. v. Federal Trade Commission
  3. Sackett v. Environmental Protection Agency

Last week, SCOTUS accepted one additional case for its current term. The court granted Oklahoma v. Castro-Huerta on Jan. 21. The case concerns state authority in Indian country and the scope of the U.S. Supreme Court’s ruling in the case McGirt v. Oklahoma (2020).

To date, the court has accepted three cases for its 2022-2023 term. The court has agreed to hear 65 cases during its current 2021-2022 term and so far has issued decisions in eight of those cases.

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Texas’ U.S. House races to have the fewest candidates per seat this year since at least 2018

The filing deadline for candidates running for state or federal office in Texas was December 13, 2021. Our team has been crunching the numbers on the filings and sent along a report. This year, 223 candidates are running for Texas’ 38 U.S. House seats, including 143 Republicans, 79 Democrats, and one independent candidate. That’s 5.87 candidates per seat, less than the 6.53 candidates per seat in 2020 and 5.92 in 2018.

This is the first election to take place under new district lines following the 2020 census, which resulted in Texas gaining two U.S. House seats. Two members of the U.S. House are running for re-election in a different district than the one they currently represent: Lloyd Doggett (D) is running for re-election in the new 37th District, while Vicente Gonzalez (D) is running in the 34th District seat held by retiring Rep. Filemon Vela (D).

Six seats are open, meaning no incumbent is running. In addition to Gonzalez’s and Doggett’s current districts, they are the newly-created 38th District and the 1st, 8th, and 30th districts. 1st District incumbent Louie Gohmert (R) is running for state attorney general, while incumbents Randy Weber (R) and Eddie Bernice Johnson (D) are retiring from the House.

This is the same number as 2012 (the last elections after redistricting) and 2020. There were seven open seats in 2018.

There are 13 districts where incumbents do not face primary challenges.

Three seats are guaranteed to Republican candidates because they face no opposition. Three more seats are likely to be won by Republicans because no Democrats filed. There are no districts where the same is true of Democratic candidates.

Fifteen candidates each are running in the 15th and 30th districts, more than any other. Six Democrats and nine Republicans are running in the 15th. Nine Democrats and six Republicans filed in the 30th. Both districts are open seats.

Texas’ U.S. House primaries are the first in the country, on March 1, 2022. Candidates need at least 50% of the vote to win in the primary; in the event no candidate wins a majority of the vote, the top two finishers will advance to a May 24 runoff.

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