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The Supreme court He gave an affectionate tribute to Judge Stephen Breyer on Wednesday, after he participated in his last oral debate on that platform.
The 83-year-old judge is retiring at the end of class in late June or early July, after 28 years on the Supreme Court.
Chief Justice John Roberts read out a brief statement at the end of the more than two-hour debate, and broke his voice as he spoke of his unforgettable colleague’s presence on the podium.
Roberts, who noted that other judges will later give their personals their thoughts on Breyer’s retirement, said.
“For now, we leave the courtroom with deep appreciation for the privilege of sharing this platform with him,” Roberts said.
Breyer said nothing after the Chief Justice’s remarks, one of the few times he was at a loss. He was very quiet during the argument, in the presence of his wife, Joanna.
The court’s oldest member will continue to work behind the scenes in his room for the next two months, as the court finishes writing and issuing about 40 written rulings from contested cases. Thereafter, he will formally submit his retirement, and Justice Kitangi Brown-Jackson will take the seat as the first black woman on the Supreme Court. She was once a law writer for Breyer.
Currently, the court has not said whether it plans any further public hearings to issue opinions from the court, as has been the norm, so Wednesday may have been Breyer’s last courtroom appearance as an official member of the Supreme Court. The pandemic has prevented the general public from attending courtroom hearings, and all judgments regarding this term have been made online only.
Justice Clarence Thomas could be heard laughing out loud when Roberts mentioned Breyer’s reputation for providing colorful hypothetical questions from the bench during oral arguments, and his method of investigating legal and constitutional issues in the cases before him.
The inventive and grotesque style came to light on Tuesday, when Breyer’s hypothesis in a criminal case involved phantom prisoner John the Tiger Man, “the most dangerous prisoner they’ve ever discovered.”
Members of the Supreme Court use their oral arguments – the public hearings in the courtroom – to ask questions of the lawyers who make their case. They often take the form of assumptions, to “control the limits” of the law, as Breyer once told us. “A curious example can particularly call attention to the point you want to explore when interpreting laws.”
Examples given by the variety often included the odd and slightly frightening variety: mice in a Coca-Cola bottle, pet oysters, raccoons chewing garage door sensors, and the cute “Pussycat Burglar” (“never hurt a soul,” Justice said his fictional example).
Then there was the 2004 issue of the federal government’s health and community concern banning people from growing marijuana plants in their backyard. Breyer wondered about other illegal or dangerous things. “You know, he’s growing heroin and cocaine and tomatoes that will have their genomes in them that could at some point lead to tomato babies that will eventually affect Boston.” Tomato kids?
Thomas and Breyer are close colleagues, despite their ideological differences. The two were sitting next to each other on the bench and could often be seen talking softly during oral discussions, occasionally laughing at some secret joke.