The last disputes of the 2021-22 argument session were especially difficult, involving religious expression, immigration policy and Native American tribal authority. Most of the nine justices showed their frustration through the long hours of questioning.
In the air were also expectations of how this court, with the new conservative supermajority, will soon rule on the tough cases this week and controversies over abortion rights, gun control and public funding of religious education argued earlier this session.
Yet Breyer, as he has done for his 28 years on the high court, still slipped into his characteristic whimsy, zany hypotheticals and tangled multi-part questions.
Later Tuesday in a case touching on prison transportation orders, Breyer posed a hypothetical question involving an order “to produce John the Tiger Man, who is the most dangerous prisoner they have ever discovered.”
Roberts choked up as he added that “we leave the courtroom with deep appreciation for the privilege of sharing this bench with him.” Breyer grinned. His wife, Joanna, watched from a special section of the courtroom reserved for justices’ guests.
When the justices then rose to leave the bench, Roberts motioned for Breyer to exit ahead of him through the crimson drapes. Breyer beamed.
Breyer, one of the three remaining liberals, announced his retirement in January and will remain on the court until late June or early July, when all the decisions of its annual session are handed down and US appellate Judge Ketanji Brown Jackson succeeds him.
From his early years on the bench after his 1994 appointment through his last moments on Wednesday, Breyer was a singular interlocutor. He rarely suppressed his enthusiasm, or his frustration, for points a lawyer made at the lectern.
He also regularly looked side to side for reactions from his colleagues. When he sat for years next to Justice Clarence Thomas, Breyer was always leaning over to whisper. With the presiding Roberts next to him in more recent terms, Breyer appeared to write on a sheet of paper and slip it over to him, as happened on Wednesday.
Breyer was more animated than most justices and, as Roberts made clear, more memorable.
The 83-year-old showed an old-school sensibility even when he was younger. In a 2009 dispute over employees’ duty regarding a statute covering bribes, kickbacks and other violations of “honest services,” Breyer posed a query to Department of Justice lawyer Michael Dreeben that recalled an era of men in fedoras ready to skip work for the track: “‘Do you like my hat,’ says the boss. ‘Oh, I love your hat,’ says the worker. Why? So the boss will leave the room so that the worker can continue to read the Racing Form. Deception? Designed to work at reading the Racing Form instead of doing your honest work, and therefore a violation?”
On Tuesday, Breyer poked fun at his accumulated years on the bench, saying, “I actually didn’t know … John Marshall,” the great chief justice who served 1801-1835.
Breyer demonstrated a proclivity toward all manner of fish, birds and insects.
Earlier this year, he posed a query about a “spider” class action lawsuit, acknowledging that it was a “weird analogy,” then adding — in classic Breyer 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’s too weird.”
Lawyer Scott Nelson responded, “Justice Breyer, it’s really tempting to take you up on the offer not to answer, but I’m going to anyway because, you know, I don’t think these cases are any fun without a little bit of zoology involved.”
And so it went, too, for Breyer’s fellow justices, who would laugh at his remarks or sometimes pick up his thread. His liberal colleagues, however, often found themselves reframing some of his queries to make sure key points from the left were not lost.
“I think what Justice Breyer is suggesting … ,” Justice Elena Kagan would say. Or, “One way to make Justice Breyer’s point. …”
This session liberals have been looking for any inroads on the high-stakes cases to be decided through June. Breyer was not without his efforts to turn the arguments toward possible progressive outcomes, even as he gravitated toward vivid hypotheticals.
During a dispute over the reach of the Clean Air Act and federal action on climate change, he asked questions seeming to back the Environmental Protection Agency’s regulatory authority. Yet he couldn’t help but wander through a hypothetical involving tobacco regulation and “the advertising of 4-foot cigar smoked through hookahs.”
Lawyer Beth Brinkmann responded, “I think, you know, that helped me,” before continuing with the substance of her argument.
A few beats later, Kagan observed, “You know, Ms. Brinkmann, it’s not always the case that a lawyer responds to one of Justice Breyer’s hypotheticals by saying that’s really helpful.”
Breyer laughed along with everyone else.