VIEW FROM THE COURT
Dear Stephen Breyer
on May 19, 2023 at 7:03 pm
The courtroom is full Thursday morning as everyone seems to have gotten used to the switch from Monday opinion days. The bar section is filled with quite a few lawyers who will be sworn in to the Supreme Court Bar after the day’s opinions, including the California Lawyers Association Taxation Section with an especially well-timed visit.
Solicitor General Elizabeth Prelogar leads a contingent from her office, including Deputy Solicitors General Brian Fletcher and Malcolm Stewart. Georgetown University Law Center and its Supreme Court Institute gave a tribute to Stewart, who was been with the Department of Justice for more than 30 years, at its annual end-of-arguments reception in April.
Justice Elena Kagan gave a rousing and funny tribute focused on Stewart’s passion for the Washington Capitals hockey team. (When the Capitals won the Stanley Cup in 2018, and their victory parade was going to march right past Main Justice, I noted that Stewart might be the one in the crowd with a morning coat over his hockey sweater.) She described how Stewart coaxed her to join him for the first of several games they attended together, but demanded that Kagan deck herself out in a not-inexpensive Caps jersey.
As the clock approaches 10 a.m., another couple of high-profile guests arrive. Retired Justice Stephen Breyer and his wife, Joanna Breyer, take seats in the VIP section.
Breyer has been engaged in some major reflection on his career in a series of conversations at George Washington University that began on March 29. Jimmy Hoover, the National Law Journal’s new Supreme Court correspondent, had a good story on Breyer’s reflections at Tuesday’s event on the sexism exhibited to female Harvard law students by some professors in the early 1960s. There will be three more conversations in the series next fall.
The justices take the bench, and instead of going right to opinions, Chief Justice John Roberts announces he will read into the record “an exchange of correspondence.”
Such letters are a tradition at the court for newly retired members. “Dear Stephen, You are in so many ways a model jurist,” Roberts begins, choking up a little. Breyer, he says, “brought both intellectual force and practical sense to deliberations and decisions.”
“You remain our resident polymath,” Roberts continues. “A simple joke in your telling lifts us all, albeit often with groaning.”
“Always a professor, it is fitting that you have returned to teaching at Harvard,” Roberts reads. Breyer, who was named the Byrne professor of administrative law and process at Harvard Law School last year, clasps his hands over his heart and nods.
“We wish you and Joanna great happiness in this new chapter,” Roberts concludes.
The chief then reads Breyer’s response letter.
“When I first joined the court, [Justice] Harry Blackmun told me that I would find it an ‘unusual assignment’,” Breyer wrote. “He was right; the work is difficult; it requires full attention. It is a huge responsibility, as well as a great honor. But most of all, one learns that, even when judges disagree strongly about their work, they can, and do remain personal friends. They continue to value each other highly as human beings.”
The chief finishes reading the letters and it is on to a (very) busy day of opinions.
Justice Neil Gorsuch has the first opinion for a unanimous court in the patent case Amgen v. Sanofi. It is the first opinion from the March sitting.
Justice Sonia Sotomayor is next for a lengthy summary of her opinion in Andy Warhol Foundation for the Visual Arts v. Goldsmith. Roberts seems to pause when Sotomayor is done, as if there might be an oral dissent. And based on my later reading of Kagan’s biting dissent, joined by the chief justice, I might have expected one. But we are still awaiting the first dissent from the bench in some four years.
Justice Clarence Thomas delivers the 7-2 decision in the labor dispute Ohio Adjutant General’s Department v. Federal Labor Relations Authority.
Thomas then announces the major decisions of the morning. The justices ruled in favor of social media companies in Twitter, Inc. v. Taamneh and sent Gonzalez v. Google back to the lower court in light of the decision in Twitter.
Finally, Roberts has the last decision of the day, his first majority opinion of the term, in Polselli v. Internal Revenue Service. The decision settles a circuit split about summonses for records in tax cases.
After the justices leave the bench, Breyer waits for other guests to file until his wife reaches him, and they walk out of a side exit of the courtroom together.