Recent controversies in the 2021-22 debate session have been particularly difficult, including religious expression, immigration policy, and Native American tribal power. Most of the nine judges showed their frustration during the long hours of questioning.
Also up in the air are predictions of how this court, with its neo-conservative majority, will soon rule on the tough cases this week and controversies over abortion rights, gun control and public funding for religious education, discussed earlier in this session.
Yet Breyer, as he has done throughout his 28 years on the Supreme Court, still slips into his own characteristic whims, impassioned propositions and intertwined multi-part questions.
Later Tuesday in a case involving prison transfer orders, Breyer asked a hypothetical question that included an order “to take out John the Tiger, the most dangerous inmate they have ever discovered.”
Roberts choked, adding, “We are leaving the courtroom deeply appreciative of the privilege of sharing this platform with him.” Briar smiled. His wife, Joanna, was watching from a special section of the courtroom for the judges’ guests.
When the judges then got up to leave the bench, Roberts asked Breyer to come out in front of him through the scarlet curtains. Briar smiled.
Breyer, one of the three remaining Liberals, announced his retirement in January and will remain in court until late June or early July, when all decisions of its annual hearing are made and he is succeeded by US Appeals Judge Ketanji Brown-Jackson.
From his early years on the bench after his 1994 appointment to his final moments on Wednesday, Breyer was a unique communicator. His enthusiasm, or frustration, for the points made by a lawyer at the podium was seldom quelled.
He also regularly looked side-by-side to get feedback from his teammates. When he sat for years next to Judge Clarence Thomas, Breyer was always inclined to whisper. With President Roberts next to him in more recent periods, Breyer appeared to write on a piece of paper and pass it to him, as happened on Wednesday.
Breyer was more lively than most of the judges, and as Roberts made clear, he was unforgettable.
The 83-year-old showed an old-school sensibility even when he was younger. In a 2009 dispute over the duty of employees regarding a law covering kickbacks, kickbacks, and other “honest services” violations, Breyer posed a query to Department of Justice attorney Michael Drebin in which he referred to the era of fedora men willing to skip work for the track: “Do you like my hat,” says the chief. “Oh, I love your hat,” says the worker. Why? So the boss will leave the room so the worker can continue reading the race model. tricked? Designed to work on reading the racing model rather than doing your honest job, and therefore is it a violation? “
On Tuesday, Breyer mocked his cumulative years on the podium, saying, “Actually I didn’t know…John Marshall,” the chief justice who served 1801-1835.
Briar showed a tendency toward all kinds of fish, birds, and insects.
Earlier this year, he made an inquiry about a “spider” class action lawsuit, admitting it was a “strange analogy,” then added – in Breyer’s classic digression – “I don’t know where to go, because it’s just my fault, just ignore it, you don’t even have to Answer the question because it is very strange.”
Attorney Scott Nelson replied, “Judge Breyer, it’s really tempting to take you on the offer not to answer, but I’ll do it anyway, you know, I don’t think these cases would be fun without a little bit of zoology involved.”
And so it went with his fellow judges, who would laugh at his notes or occasionally pick up his leads. However, his fellow liberals often found themselves reframing some of his inquiries to ensure that key points from the left were not lost.
“I think what Judge Breyer is suggesting is…” said Judge Elena Kagan. or “One way to make Justice Breyer’s point of view…”
The Liberals at this session were looking for any progress on the high-stakes cases to be decided through June. Breyer was not without his efforts to shift arguments toward potentially progressive outcomes, even as he gravitated toward vivid hypotheses.
During a dispute over the reach of the Clean Air Act and federal action on climate change, he asked questions that appeared to support the regulatory authority of the Environmental Protection Agency. However, he couldn’t help but wander about a hypothetical order that involved regulating tobacco and “advertising a 4-foot-high cigar being smoked through a hookah”.
Attorney Beth Brinkman replied, “I think, you know, that helped me” before continuing to the gist of her argument.
A few minutes later, Kagan remarked, “You know, Mrs. Brinkman, it’s not always the case that counsel responds to one of Judge Breyer’s assumptions by saying that it is really helpful.”
Briar laughed with everyone.