SUPREME COURT NOTEBOOK: Breyer’s final probability to hypothesize

WASHINGTON (AP) — The fertile thoughts of Justice Stephen Breyer has conjured a stream of hypothetical questions by the years which have, within the phrases of a colleague, “befuddled” legal professionals and justices alike.

Breyer, 83, was at it as soon as once more Tuesday, inventing a jail inmate named John the Tigerman in a case involving transporting an inmate for a medical check. Breyer known as him “the most dangerous prisoner they have ever discovered.”

The justice has yet another probability Wednesday, the final of greater than 2,000 arguments through which he has taken half throughout 28 years on the excessive courtroom. The case is about Oklahoma’s authority to prosecute folks accused of crimes on Native American lands, following a 2020 Supreme Court determination.

Just since Breyer introduced in late January that he was retiring, he has requested legal professionals to reply questions involving spiders, muskrats and “4-foot-long cigars smoked through hookahs” — none of which, it’s honest to say, had any precise hyperlinks to the instances at hand.

Breyer as soon as granted an interview to The Associated Press through which he acknowledged that his questions generally stretch the bounds of credulity.

That’s by design.

“The point is to try to focus on a matter that is worrying me. Sometimes it’s easier to do that with an example,” he mentioned in 2008.

He’s additionally not above a joke at his personal expense. “I mean, we could stay here a long time, which we won’t, listing things I don’t know,” he mentioned in courtroom final week.

On the bench, Breyer’s questions will generally elicit fun from Clarence Thomas or a smile from Brett Kavanaugh. Other justices have affectionately needled Breyer concerning the queries, which may go on and on. “I can never equal my colleague’s evocative hypotheticals,” Justice Samuel Alito mentioned throughout arguments in February.

In that very same case, concerning the Environmental Protection Agency’s authority to fight local weather change, lawyer Beth Brinkmann truly thanked Breyer for the cigar query, which she mentioned helped her.

Brinkmann’s remark prompted Justice Elena Kagan to watch: “You know, it’s not always the case, Ms. Brinkmann, that a lawyer responds to one of Justice Breyer’s hypotheticals by saying that’s really helpful.”

The matters vary far and large, however animals usually play a featured function, as occurred final week in a case involving a employees compensation legislation for federal contractors on the Hanford Nuclear Reservation in Washington state.

“The new law applies to workers who work at any structure and its lands. So, when I read that, I think maybe there are several federal workers who are busy on a river at Hanford cleaning out muskrat nets — nests, OK, and they are nowhere near a structure where particular forms of waste are disposed of, expect — except by the muskrats, which have nothing to do with this, OK?” he requested.

In March arguments about arbitration, Breyer mentioned, “Now suppose instead of saying you can’t arbitrate it, what they do — and this is ridiculous, but you’ll see why I do it this way for simplification — they put a spider next to it, and there’s a rule saying you can’t ever arbitrate anything with a spider, OK?”

Eventually Breyer instructed the lawyer, Scott Nelson, he was free to disregard the query “because it’s too weird.”

Many legal professionals would welcome the invitation, however Nelson was recreation. “I’m going to take a stab at it anyway because, you know, I don’t think these cases are any fun without a little bit of zoology involved,” he mentioned.



A plain black gown makes it simple to dress for courtroom. But this time period, amid a curler coaster of COVID-19 considerations, justices have weighed whether or not so as to add masks to their courtroom apparel, with on once more, off once more outcomes.

When they returned to the courtroom in October following greater than a yr and a half of pandemic-inspired arguments by cellphone, the justices had been unmasked. The lone exception was Justice Sonia Sotomayor, a diabetic since childhood, who has persistently worn a masks in courtroom. Everyone else within the courtroom was required to put on masks, however legal professionals eliminated theirs after they made their arguments.

In January, as coronavirus instances had been spiking, seven justices wore masks for the primary time whereas listening to arguments in instances concerning the Biden administration’s authority to require vaccines for well being care employees and impose a vaccine-or-testing requirement on the nation’s massive employers. Neil Gorsuch was the lone unmasked justice, whereas Sotomayor, his seatmate, stayed out of the courtroom altogether and took half in arguments from her workplace. They denied a media report that they had been at odds over masks.

Sotomayor returned for February arguments, however everybody else was unmasked because the omicron surge waned. The courtroom quickly dropped the masks requirement for everybody else within the courtroom.

Then for the time period’s closing arguments this week, Justice Elena Kagan confirmed up sporting a masks. The courtroom mentioned she had been uncovered to somebody with the virus and whereas repeatedly testing adverse had determined to put on one out of an abundance of warning.

While masking was a alternative, judicial modesty prevailed — solely strong colours, white, black or darkish blue.

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