Appellate Advocacy Blog

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

Thursday, April 28, 2022

Some Thoughts as Justice Breyer Leaves the Court

Justice Stephen Breyer heard his last arguments yesterday as a member of the Supreme Court of the United States. With no disrespect to the remaining members of the Court or its soon-to-be newest justice, his retirement undoubtedly will leave the Court a less interesting place.

While the replacement of one left-of-center justice with another will not change the ideological balance on the Court, we will have to wait to see if Justice Ketanji Brown Jackson moves the needle a little farther to the left than did Breyer, one of the justices closest to the ideological center. And by all accounts one stellar intellect is being replaced with another. Many things won't change so much where it really matters. From a jurisprudential standpoint, time will tell. I'll leave the serious academic summations of Justice Breyer's career and his impact on the law to others. My only aim here is to say this: the Court just won't be the same without him.

The retirement of Justice Breyer is likely to continue one trend at the Court: it will become more boring. I don't mean that in the legal sense--after all, there are plenty of important and interesting cases at the Court--but really in a much more basic sense.

Some may find being more boring a good thing for the Court. After all, there were critics of the celebrities that justices like Antonin Scalia and Ruth Bader Ginsburg had become. But no one can argue that they weren't the rock stars of the Court. After their deaths and now with the departure of Justice Breyer, exactly who are the rock stars of the Court? Justice Sotomayor perhaps as she is noted for asking tough questions of the advocates? Justice Kagan, recognized by many as the most interesting writer of the Court? Notwithstanding their abilities and regardless of how one views their judicial philosophies, it is hard to say at this point that the last three appointments have spiced anything up on the Court. To the extent that the justices should just be umpires calling balls and strikes, as Chief Justice Roberts famously said during his confirmation hearing, anonymity generally has been the hallmark of a good umpire (or any sports official). And according to recent polls, most Americans don't know who the justices are.

For those of us who pay close attention to the Court, though, Justice Breyer will go down in history as one of the most memorable. It sure was fun to have him on the Court, and he will be missed.

The Court is losing a justice with some unique qualities not likely to be matched any time soon:

  1. Hypothetical questions. -- No one asked more hypotheticals, better hypotheticals, more complex hypotheticals, or more confusing hypotheticals than he did. It just won't be the same for advocates or observers without them.
  2. Wit, sometimes intentional and sometimes not. -- When Justice Scalia was on the Court, Justice Breyer was right behind him in terms of garnering the most laughter during oral arguments. Of course, some of the laughter came in response to the hypotheticals mentioned above. My personal favorite was when he discussed someone having a "pet oyster." But then there also was the time he mentioned his underwear. And even recently he mentioned radioactive muskrats.
  3. He loved the Federal Sentencing Commission and the Federal Sentencing Guidelines. -- Justice Breyer was a defender of the Federal Sentencing Guidelines. Indeed, he was considered by some to be one of the "parents" of the guidelines, having served on the first Sentencing Commission that created them. He liked to discuss the Commission and mentioned it in an oral argument as recently as January.

In his comments at the close of the last argument heard by Justice Breyer, the Chief Justice put it best: "For twenty-eight years, this has been his arena for remarks profound and moving, questions challenging and insightful, and hypotheticals downright silly." As the Chief Justice's voice trembled with emotion, he spoke for all of us in saying good-bye to a justice unlike any other.

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