Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Sunday, January 30, 2022

Justice Breyer Retires

Justice Stephen Breyer’s announced retirement has brought forth retrospectives about his legacy as a pragmatist who cared about the real-life consequences of the Supreme Court’s decisions. Among the tributes was a heartfelt statement from Chief Justice John Roberts that revealed a little-known insider secret about Breyer: Breyer treated his colleagues to a “surprisingly comprehensive collection of riddles and knock-knock jokes."

To advocates before the Court, Breyer was known for his paragraphs-long questions that worryingly ate into your time and sometimes, as the Chief Justice said upon Breyer’s retirement, contained “fanciful hypotheticals … [that] have befuddled counsel and colleagues alike.” Breyer loquacious tendencies were well-known to him and used to make self-deprecating jokes. He was fond of telling the story that, once as a Harvard law professor, he received an anonymous note from a student, who wrote, “Professor Breyer, if I had only one hour to live, I should like to spend it in your class.” Breyer then notice that the back of the note had more to say: “That’s because only in your class does one hour seem an eternity.”

Breyer’s long tenure on the Court, 27 years, included a modern record of eleven years as the junior justice. The junior justice answers the door when the justices meet in conference. Justice Antonin Scalia would regularly have someone deliver a cup of coffee to the conference at its midpoint. When that happened, Breyer would dutifully answer the door and serve Scalia the coffee. After having done the job for ten years, Breyer reported that he said to Scalia, “I’m getting pretty good at this.” He said Scalia’s answer was, “No, you aren’t.”

Eleven years of performing a task can become a habit. At the first conference after Justice Samuel Alito succeeded Breyer as the junior justice, Breyer stood during conference as soon as he heard a knock at the door. Breyer stopped in his tracks when Roberts told him, “Steve, sit down, that’s not your job anymore.”

Another task of the junior justice is membership on the Court’s cafeteria. The Washington Post’s food critic, on more than one occasion, has not only given the food a failing grade, but suggested that its fare should be declared “unconstitutional.” Justice Elena Kagan calls the assignment a form of “hazing,” intended to bring a new justice down from the heights of having acquired a plum, life-tenured job at the height of the legal profession. Justices will purposely comment on how bad the food is and then ask who is on the cafeteria committee, “as if they don’t know!” Kagan said. Nonetheless, while it was his turn on the committee, Breyer dutifully would walk around the cafeteria from time to time, asking patrons about what could be improved. His innovations while a member of the committee: a salad bar and Starbucks coffee.

Breyer wrote two of the majority opinions in cases I argued at the Court and memorably filibustered in another oral argument when my opponent ran out of things to say, taking up the dead airtime. In the most recent decision he wrote in one of my cases, it was clear to me that he corralled the fifth vote I needed to prevail by writing about a topic that was left undecided and asking for lower court guidance.[1] In the earlier one, I was on the short end of a 5-4 decision.[2] The case returned to the Court two years later on the issue of whether the Oregon Supreme Court had defied the earlier decision by restoring our victory. Oregon allowed a 97:1 punitive to compensatory damage ratio after the Supreme Court held that a defendant had a right to have a jury instruction limiting the size of the punitive damages to the harm specific to the plaintiff, rather than others. Oregon subsequently held, as we had pressed all along, that the defendant’s requested jury instruction misstated Oregon law and that there was no error in refusing to give it.

In our return to the U.S. Supreme Court, the case turned on whether this “clear and correct in all respects” rule on jury instructions was well-established and regularly applied by the state courts. Breyer asked for my opponent’s best case on the issue. When I stood up, he soon asked me the same question. I had cited thirty-two cases over a 78-year period in my brief but replied that I am happy to rely on one case that both sides cited, because it really favored my client. Breyer chuckled and revealed that he had that case in front of him. He read a sentence to me that seemed to support the other side and asked me to explain it. My answer noted that he had left off the dependent clause of the sentence, which completely changed its meaning. He agreed, saying that he voted to grant certiorari because he believed the Oregon court was giving his court the “runaround.” He added, I do not believe that anymore. It was the signal I needed that, as turned out to be the case, the Court agreed with my suggestion that the case be dismissed as improvidently granted.[3]

Courts are institutions, but institutions made up of people. Understanding those individuals who serve as judges can influence how you brief or argue a case. Justice Byron White said the arrival of a new justice creates a new Court. Unquestionably, the dynamics can change, and the experience brought to the Court by the new justice can alter the perspective of those who remain. There is no doubt that Justice Breyer changed the Court with his arrival and had an impact on his colleagues’ outlook over his tenure. For at least one advocate, he figured importantly in a significant percentage of his cases.

 

[1] Bank of Am. Corp. v. City of Miami, Fla., 137 S. Ct. 1296 (2017)

[2] Philip Morris USA v. Williams, 549 U.S. 346 (2007).

[3] Philip Morris USA Inc. v. Williams, 556 U.S. 178 (2009) (mem.).

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