'Deep appreciation': Supreme Court Justice Stephen Breyer receives emotional tribute at final argument
Often described as a pragmatist – regularly but not always a vote with the court's liberal wing – Breyer will be replaced by U.S. Circuit Judge Ketanji Brown Jackson.
- Justice Breyer is retiring from the Supreme Court after nearly 30 years on the high court..
- Breyer took part Wednesday in his final oral argument, a case dealing with Native American law.
- Chief Justice John Roberts offered an emotional tribute to Breyer at the end of arguments.
WASHINGTON – Associate Justice Stephen Breyer's final oral argument at the Supreme Court included an in-the-weeds debate Wednesday with Chief Justice John Roberts over what Congress meant when it passed a law more than two centuries ago addressing crimes committed on Native American territory.
It ended with the same two justices sharing a rare display of public emotion.
After more than two hours of debate in a case over who is responsible for prosecuting crimes against Native Americans, Roberts closed the final arguments session of the term with a moving tribute to Breyer. Pausing, his voice trembling, the chief justice praised the colleague sitting next to him for his "remarks profound and moving," his "questions challenging and insightful" and his "hypotheticals downright silly."
"We leave the courtroom with deep appreciation for the privilege of sharing this bench with him," Roberts said before the justices exited through curtains in the high court's august courtroom.
Breyer, 83, announced in January he would retire once the Supreme Court ends its current term this summer, stepping down after nearly three decades. Often described as a pragmatist – regularly but not always a vote with the court's liberal wing – he will be replaced by U.S. Circuit Judge Ketanji Brown Jackson, who was confirmed April 7.
Breyer's work is far from over: The Supreme Court is now heading into its busiest period of the term as the justices craft opinions in the cases they debated this year and last. Those include the possible overturning of the landmark Roe v. Wade abortion case as well as a case that could expand the ability of Americans to carry concealed guns.
But given that the court has now concluded arguments – and given that it's not yet clear whether the justices will return to the pre-pandemic practice of reading their opinions in person from the courtroom – there's a good chance Wednesday marked the final time Breyer will sit on the bench.
The case before Breyer and the other eight justices deals with whether the state of Oklahoma has a role in prosecuting certain crimes committed against Native Americans by non-Natives on reservations, or whether those prosecutions are the exclusive jurisdiction of the federal government. It's a question of particular importance to Oklahoma after a 2020 decision treated about half of the Sooner State as tribal territory.
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State authorities charged Victor Manuel Castro-Huerta with neglecting his 5-year-old stepdaughter, a member of the Eastern Band of Cherokee Indian. But the Oklahoma Court of Criminal Appeals threw out the conviction, holding that because the crime occurred on Native American territory state courts didn’t have jurisdiction.
Breyer, nominated to the Supreme Court by President Clinton in 1994, appeared skeptical of Oklahoma's argument, suggesting that a law passed by Congress in the 19th century implied that the federal government had exclusive jurisdiction over such crimes, just as it did for federal enclaves within states.
Roberts said he disagreed with that assessment, noting that if Congress wanted the federal government to have exclusive jurisdiction for prosecuting the crimes at issue it could have said so explicitly.
"I hesitate to say it, but I think you may be wrong," Roberts said.
"That's the other way to read it," Breyer acknowledged.
During arguments, Breyer is often demonstrative, waving his arms for emphasis. His penchant for long, rhetorical questions often ends abruptly with statements like “Now, why am I wrong?" or "What do I do with that?" And he was true to form on Wednesday, encouraging veteran appellate lawyer Kannon Shanmugam to "tell me if I'm wrong."
Breyer on Wednesday avoided his practice of positing humorous hypotheticals, which has engendered frequent ribbing from attorneys and his colleagues. But only a day earlier, in a case about whether a federal district court may order a state prisoner to be transported to a medical center for neuroimaging, Breyer raised the specter of "John the Tiger Man," the "most dangerous prisoner they have ever discovered" to make his point.
Roberts teased Breyer about the "tiger man" on Wednesday.
Breyer, whose wife sat in the ornate courtroom Wednesday, has often been able to draw laughter during the otherwise sober arguments while also making a serious point. "Two, opinions written by people I actually didn't know – like John Marshall," Breyer deadpanned this week, referring to the court's legendary chief justice who died in 1835.
Breyer, a California native and Harvard Law graduate, clerked at the Supreme Court at the height of its push to expand civil rights under Chief Justice Earl Warren. Breyer would go on to serve for 14 years as a judge on the U.S. Court of Appeals for the 1st Circuit in Boston, including four as its chief judge.