Stephen Breyer

Well, our...

Former colleague Justice Breyer confronted with questions like this.

You know, his favorite hypothetical, in that area anyway, was a sign in a park that says, you know, no pets in the park.

And the question was, did that mean that the person carrying his pet snail in his pocket was subject to prosecution? I mean, don't we have to look at the general purpose that's involved here before determining that the statute reaches as far as you would have it?

Again, sir, like you were never into Steve Breyer's approach to statutory interpretation.

So the idea that you would be right out of the gate at this oral argument invoking Steve Breyer, like, what are you doing? What are you thinking? It's very odd.

They've just

decided, like, we're not – again, when you have six, you don't have to pretend that you're textualist anymore.

In 2022, the Department of Education adds an outdoor classroom to its standard for every public school built with federal money.

Justice Stephen Breyer retires at the end of June in 2022, and the president replaces him with a member of the California Supreme Court, Leondra Kruger.

Prices climb through that year, and in November, the Republicans take back the Senate on the issue of affordability.

On November 5th, 2024, Vice President Castro runs against the senator from Florida, Marco Rubio, in the first ever presidential race between two Latino candidates.

And, and, uh, for a time, he wanted to appoint George Mitchell, who was, you know, who negotiated the Good Friday Accord, the former Senate majority leader.

And, and anyway, he never could get it to work, so he wound up appointing Ginsburg and Stephen Breyer, who, who did many good things but were very much of this kind of appeals court judge pipeline.

Uh, bottom line is all of these things t- really have the same themes in common.

We the people have a legitimate role in bringing accountability to the Supreme Court.

You know, this was pro- this was projected a year and a half ago, uh, by, uh, judges on the, uh, in the federal court system.

Uh, we had a, a Judge Breyer, who was the brother of one of the former justices of the Supreme Court, and he gave this exact scenario.

He said, "What if a president, saying it was a national security risk, used the National Guard to seize ballots?" I mean, this is where we're at now, folks.

Donald Trump taking any crackpot stray comment as some sort of, you know, manna from heaven for him to use against the American people to try to stay in power.

No.And then the cherry on top was, um, RBG dying like two weeks before the 2020 election, and Trump got to appoint another right-wing religious monster, Amy Coney Barrett.

Or at least when Biden got Stephen Breyer retiring, we got K- Ketanji Brown Jackson.

No, my first name ain't Baby, it's Ketanji.

Judge Jackson, if you're nasty.

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Most people know McGirt as the 5-4 decision in which Justice Neil Gorsuch joined the then four liberals on the Supreme Court, Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.

Chief Justice Roberts wrote the dissent, joined by the court's remaining conservatives.

McGirt ruled that a huge swath of Eastern Oklahoma, including most of the city of Tulsa, is still the reservation of the Muscogee Creek Nation.

I, I think it is fair to say that the tenor of the Supreme Court bench, again, left and right, is incredulous, right?

Mm-hmm.

Like, there, there's this tone of, "Are you really telling us that half of Oklahoma is still a reservation?" Like, like, here's a quote from reliable lefty Justice Stephen Breyer.

He says, "There are 1.8 million people living in this area.

And for many years now, leftist judges have been on a campaign to eliminate the death penalty.

Stephen Breyer, the former, uh, Supreme Court Justice, justice, was one of the pioneers of this strategy.

This is from his opinion in the case of Knight v. Florida from 1999.

Quote, "A growing number of courts outside the United States, courts that accept or assume the lawfulness of the death penalty, have held that lengthy delay in administering a lawful death penalty renders ultimate execution inhuman, degrading, or unusually cruel.

Uh, and of course, the system has been gamed by Democrats and Republicans appointing, uh, justices as young as they could possibly get them, uh, so that they can leave their imprint on the court.

But an 18-year term, uh, which by the way has been endorsed by, uh, Stephen Breyer, the retired Supreme Court justice, that can be done legislatively.

So there are some things short of amending the Constitution that can be done both locally and legislatively at the national level if there's enough momentum to get those things done, which would certainly help.

I kinda wanna get your take on this idea of whether or not the United States is a democracy or a republic, and I've got my understanding of it.

I don't anymore.

I think that, uh, I think people can come, uh, together and, and reasonably discuss, uh, what are, what a constitutional form of government in the 21st century ought to look like, and that we ought not to be stuck in 1789, or at least the Supreme Court's, uh, version of originalism, which places us in 1789, is, uh, is what, is what we need.

I mean, there were justices like, uh, Stephen Breyer, um, that spoke of the living Constitution.

Well, that was their, their way basically of injecting new life into the Constitution, of dealing with Jefferson's objection to shackling generations with an old document and what was or wasn't a corporation in 1789, which is exactly what drove Citizens United.

Yeah, yeah.

Well, Justice Clarence Thomas, Justice John Paul Stevens, Justice David Souter, Justice Ruth Bader Ginsburg, and Justice Stephen Breyer were in the ascent.

It went 5-4.

And the split was not based on liberal versus conservative divides, which we're not used to these days, which rarely seems to happen on the Supreme Court.