44-Line “Breyer Page” in Hosanna-Tabor v. EEOC. New #SCOTUS Record!

December 29th, 2015

I think we have a new record. While doing some research for Unraveled, I went back to review oral arguments in Hosanna-Tabor v. EEOC (2011). You may recall that Deputy SG Kruger had told the Court that neither the First Amendment’s Free Exercise Clause or Establishment Clause gave a church the right to “institutional autonomy with respect to its employees.” Justice Kagan said that she found this response “amazing” that the government thought “neither the Free Exercise Clause nor the Establishment Clause has anything to say about a church’s relationship with its own employees.” After this remark, Kruger floundered for a bit discussing the right of free association, but she was gaining no traction. That was until Justice Breyer intervened with a 44-line soliloquy about his internal turmoil with this case. It stretched from 43:37 to 45:44 in the audio. He spoke uninterrupted for over two of the government’s fifteen minutes of divided argument time. He finished his remarks with “What about that?”

I think this is a new record for Breyer pages. In Bond, he spoke for 38 lines uninterrupted. 36 Lines in FERC v. Electric Power Supply Association. He went 32 lines in Medtronic v. Boston Scientific Corp. He had 35 lines in EPA v. EME Homer. In Franchise Tax Bd. of Cal. v. Hyatt, Justice Breyer spoke had 34 lines. Alas, only 27 lines in Zivotofsky.

Here is the Breyer-page that spans three pages in the transcript: