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Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

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A Breyer Page in Bond

November 5th, 2013

A “Breyer Page” is a page in the Supreme Court transcript where no one talks but Justice Breyer. We had one in Bond (p. 34). It begins with two lines on p. 33 and ends with 11 lines on p. 35. Think about that. Justice Breyer spoke for 38 lines uninterrupted.

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#SCOTUS Life Goals: RBG References My Breyer-Page Statistics During 2nd Circuit Judicial Conference

May 27th, 2016

Yesterday Justice Ginsburg addressed the 2nd Circuit Judicial Conference. She made some news with her comment that “Eight is not a good number” for the Court, but the far more momentous occasion came when she discussed records set during the Term. This morning Will Baude emailed me, and said “RBG just mentioned you in her speech at the second circuit judicial conference.” I patiently waited for the transcript to be posted, and she did not disappoint.

From her prepared remarks:

Records set during the term. According to a law professor who keeps tabs on these things, then blogs about them, Justice Breyer asked the longest question at oral argument. In United States v. Texas, a challenge to the President’s immigration executive order, Breyer’s inquiry ran 52 transcript lines.

That law professor would be me! #SCOTUS life goals. Not as good as an actual citation in the U.S. Reports, but I’ll take it for a start.

I am glad to perform this public service, and do whatever is in my power to highlight the plight of the poor advocate who has to cede 10% of his time for a single question that has no answer.

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Breyer’s 52-line question in U.S. v. Texas–which lasted 3 minutes and 15 seconds–was not just the record for this term, but the longest one I have ever seen. (If anyone can find a longer Breyer question, please send it in). He went for 49 lines in Zubik v. Burwell. His previous record was in 44 lines in Hosannah-Tabor. 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 inZivotofsky.

Justice Breyer Demolishes His Own Record With 52-Line, Three-Page #BreyerPage

April 20th, 2016

All records are made to be broken–especially when Justice Breyer begins a hypothetical in a closely divided case where counsel are sharing a limited amount of argument time. In U.S. v. Texas, Justice Breyer engaged in a 52-line, three-page uninterrupted monologue about the issues of standing. (I excluded three lines for “laughter” as those were not remarks by Breyer). This is a remarkably long observation, without even the pretense of offering a question at the end. I was in the Court, and it seemed to drag on forever.

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I was in the Court for his 49 lines in Zubik v. Burwell. His previous record was in 44 lines in Hosannah-Tabor. 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.

Visualizing the #SCOTUS #BreyerPages

April 6th, 2016

Steven Vaughn (@), a Georgetown Law Center Student, created visualizations to illustrate just how long Justice Breyer’s monologues are during the #BreyerPages. In short, SGB is taking up a significant amount of advocates time with his long-winded soliloquies. For example, in Zubik, Justice Breyer’s nearly-four-minute-long statement took up nearly 15% of Paul Clement’s (already reduced) time!

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We have a new #SCOTUS record! 49-Line #BreyerPage in Zubik

March 23rd, 2016

During oral arguments this morning in Zubik, Justice Breyer engaged in a 49-line soliloquy about Quakers, St. Benedict, Jews, and Muslims. How that will guide him to resolving the case, I have no idea. But I’ll tell you–in the Court the question seemed to drag on for even longer.

The previous record (by my unscientific count) was 44-lines in Hosanna-Tabor, another religious liberty case. 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.
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