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I’ve blogged ad nauseum about calls for Justice Ginsburg to retire. It seems whenever things are looking down for Democrats, we hear the same call. Now that the Senate very well may go Republican in 2014, the calls repeat. But this time, they want Breyer to step down too!

From Jonathan Bernstein at The Plum Line (a blog with a “liberal perspective” at the Washington Post), we get the call for both to step down. He first references a recent article by Charlie Savage, which I blogged about the other day.:

The new Senate policy could also shape the career decisions of sitting judges. While the change did not affect the rules for Supreme Court nominations, it set a precedent that could be used to shut down any filibuster for such a nominee as well. Several observers suggested that the prospect might influence decisions by Justices Ruth Bader Ginsburg, 80, and Stephen G. Breyer, 75, about whether to retire in 2014. Still, neither has publicly indicated any desire to time an exit strategically.

I wonder who these observers are. They aren’t speaking with any personal knowledge. They are merely speculating on how recent events may impact the decisions by RBG and SGB to retire.  I can do that. I observe all the time. I observe that RBG won’t give a damn. Breyer, not so sure.

Anyway, Bernstein writes:

Apparently there’s some question about the strategic imperative facing liberal Supreme Court Justices Stephen Breyer an Ruth Bader Ginsburg now that Democratic senators have fought back against Republican obstruction on nominations. Let me clear this up. There’s absolutely no question about it; if they want to secure the principles they have fought for during their careers, the best thing both of these senior liberal justices can do is to retire right now.

…

For Ginsburg and Breyer to risk their judicial legacy on predictions of the outcomes of these elections is nuts. It’s easy to predict what kind of judges a Republican president would select, but political scientists would tell the justices that there’s no way of predicting any presidential election two or more years in advance.

Yes, both Ginsburg and Breyer could have a dozen, or for all I know two dozen, productive years ahead of them. Yes, they both appear to still be at the top of their games right now. Yes, they would be giving up a lot personally if they stepped down.

But the strategic imperative is just as clear as it is harsh.  If they care about the principles they have worked for, it’s time to step down.

Poor Justice Breyer. He gets injured all the time. Maybe he should take one for the team, so RBG can continue being glamorous?

Come to think of it, what will Justice Breyer’s “legacy” be about? Citing legislative history when the rest of the Court shies away from it? Fighting to prop up the sentencing guidelines through the perpetual dissent when the Court has moved on? Implementing balancing tests that no one can apply? Asking questions that last an entire page in the transcript (the Breyer pages)? What is Breyer’s most significant opinion? His Morrison dissent? Heller dissent? Apprendi dissent?

Justice Breyer is renowned for his long-winded hypothetical questions that seem to meander aimlessly in the pursuit of who knows watch–but this is not so. After studying way too many oral arguments, certain trends and patterns emerge from Justice Breyer’s hypos. They are indeed traps. I call them Justice Breyer’s Patch.

Here is the first installment: “Tell me if I’m wrong.”

Very often Justice Breyer will play stupid (he’s not) and ask the advocate to tell him that he is wrong about something. Usually, it is something to the effect of, “I could not find a single case that supports X” Or, “could you find anything in the statute that said X?” Breyer follows this confusion by saying something to the effect of, “Please tell me I’m wrong.” (Often Justice Scalia will seize this moment to take a shot at SGB). By this time, the advocate knows, or should know, that Breyer is not wrong. There is no case or statute that answers his question. That’s why Breyer asks it. Often the advocate will try to hedge the question, and Breyer will answer it for him, and say something like, “Well I looked and I couldn’t find anything.” Sometimes he’ll say, “My clerks searched, and they were unable to find anything!” At this point, the advocate has been thrown, head-first, into the Breyer patch.

This trap Justice Breyer set for Paul Clement during the Medicaid arguments in NFIB was lethal.

Breyer asked, “So I want to know where this idea came from that should State X say I don’t want the new money, that the Secretary would or could cut off the old money?”

Clement replied,  “Now, in light of that separation by Congress itself of the newly eligible individuals from the rest of the program, it’s very hard to understand Congress’s decision to say, look, if you don’t want to cover these newly eligible individuals, you don’t just not get the new money, you don’t get any of the money under the –”

Breyer was waiting for just that question, and pounced. “Where does it say that?”

In one of the few occasions where Clement seemed surprised by the question, “It says it at.” Clement sutters, perhaps realizing he did not have the answer to that question–or did not want to give it.  “well, it—where does it say what, Justice Breyer?” This was the only time during the entire argument that Clement asked a Justice to repeat a question–and he handled some very obtuse questions.

JUSTICE BREYER: What you just said. You said Congress said, if you don’t take the new money to cover the new individuals, you don’t get any of the old money that covers the old individuals. That’s what I heard you say.

MR. CLEMENT: Right. And then —

JUSTICE BREYER: And where does it say that?

After Clement offered several citations to his briefs. You can hear Justice Breyer coyly flipping through the pages of the “blue brief,” knowing full well that the answer was not there.

JUSTICE BREYER: I want the part about the funding cutoff.

MR. CLEMENT: Right. And there, Justice Breyer —

Interrupting him almost immediately, Justice Breyer interjected “And that cite section is what?”

Clement answered, “I don’t have that with me –”

Again interrupting Clement–he wasn’t really interested in the answer–Justice Breyer breamed, “Well, I have it in front of me.”

Clement mused, “Great. Perfect. Thank you.”

JUSTICE BREYER: And I’ll tell you what I have, what I have in front of me, what it says.
MR. CLEMENT: Right.
JUSTICE BREYER: And it’s been in the statute since 1965.
MR. CLEMENT: Exactly.
JUSTICE BREYER: And the cite I have is 42 U.S.C. Section 1396(c). So are we talking about the same thing?

Clement knew that was the exact statute at issue. He mentioned it once in his brief in a footnote.

MR. CLEMENT: I — if that’s the — if that is the provision that gives the Secretary among other things  the authority to cut off participation in the program, yes.

Breyer spoke over Clement, eager to make his point, and began, “Yes. Okay. And here’s what it says at the end.”

JUSTICE BREYER: It says, “The Secretary shall notify the State agency” — this is if they don’t comply — “that further payments will not be made to the State, or in his discretion, that payments will be limited to categories under or parts of the State plan not affected by such failure, which it repeats until the Secretary is satisfied that he shall limit payments to categories under or parts of the State plan not affected by such failure.”

So reading that in your favor, I read that to say it’s up to the Secretary whether, should a State 2 refuse to fund the new people, the Secretary will cut 3 off funding for the new people, as it’s obvious the 4 State doesn’t want it, and whether the Secretary can go 5 further. I also should think — I could not find one 6 case where the Secretary ever did go further, but I also 7 would think that the Secretary could not go further 8 where going further would be an unreasonable thing to 9 do — since government action is governed by the 10 Administrative Procedure Act, since it’s governed by the 11 general principle, it must always be reasonable. 12 So I want to know where this idea came from 13 that should State X say I don’t want the new money, that 14 the Secretary would or could cut off the old money?

Clement countered, “what’s coercive is not the absolute guarnatee  that the Secretary could cut off every penny, but the fact that she could.” This very discretion is what made the law coercive. But this discretion had been on the books since 1965. Thus, Roberts, joined by Breyer and Kagan, held that it was constitutional as applied to the “old” medicaid, but unconstitutional as applied to the “new” medicaid for states that decided to opt out. Boom.

Breyer jumped right in. “All right. Now, let me relieve you of that concern.” “And should a Secretary cut off more money than the Secretary could show was justified by being causally related to the States’ refusal to take the new money, you could march into court with your clients and say, Judge, the Secretary here is acting unreasonably.”

Breyer quipped, “Now, does that relieve you of your fear?”

MR. CLEMENT: It doesn’t for this reason, Justice —

JUSTICE BREYER: I didn’t think it would, but I– (Laughter.)

 

This colloquy, by the way, helps to explain, in my mind at least, how Breyer joined the Chief’s opinion. I’ll comment later on Kagan’s vote.

A few other examples.

Gabelli v. SEC:

All right. Now, you will tell me that I’m wrong by citing some cases that show I’m wrong. And that’s what I’m asking. I want to be told I’m wrong, sort of.
(Laughter.)
MR. WALL: And I guess what I want to tell you is there aren’t cases out there one way or the other. There aren’t cases endorsing or declining to adopt the discovery rule in the context of fraud or concealment with civil penalty actions —
JUSTICE SCALIA: You’d expect that – you’d expect there to be some cases in a couple of hundred years.
JUSTICE BREYER: No, I haven’t found one.

Chafin v. Chafin (2012):

JUSTICE BREYER: Am I right or wrong? I want to know if I’m right or wrong.

Kirtsaeng v. Wiley and Sons (2012):

JUSTICE BREYER: Am I right; or, if I am wrong, why did they change it?

DePierre v. United States (2011):

JUSTICE BREYER: It’s my understanding here that — that the problem in this case — tell me if I’m wrong — is because cocaine can become — can be a salt. People sniff it often, I guess, if it’s a salt. And *35 that’s bad. And then there’s a kind that’s worse, that’s freebase or crack, and that isn’t a salt and it isn’t a poodle and it isn’t an acid. It takes a base form, right?

Ortiz v. Jordan (2010):

JUSTICE BREYER: Am I wrong?

MR. MIZER: Partly, yes, Your Honor. To the extent the argument is that there needed to be a 50(b) motion

Premo v. Moore (2010):

JUSTICE BREYER: Now I haven’t read this very thoroughly, so — so you — yet — so you tell me if I’m wrong about that.

Andersen v. Carlisle (2009):

JUSTICE BREYER: So is that — is that right, or is it wrong? What’s your insight or guess on that?

Nken v. Flip (later Holder) (2009):

JUSTICE BREYER: Was I right or wrong?

Klein v. Board of Trade of the City of New York

JUSTICE BREYER: Correct me if I’m wrong, but you’re going to be more favorable to this than I expect your opponent. I mean, there is nothing really linguistically or otherwise wrong if you had a statute that said people in the badminton court have to play carefully. And if they hurt somebody on the merry-go-round, they are liable.

Sole v. Wyner:

JUSTICE BREYER: I thought that it — am I wrong about that?

Untied Haulers Assoc. v. Oneida-Herkimer Solid Waste Management Authority

JUSTICE BREYER: Well, I used to teach the subject and I can’t say you’re wrong.

Well the last one didn’t fit the pattern, but it was too good to pass up.

In future research, I’ll dig up some more of the Breyer patches.

A funny exchange form oral argument in Descamps v. United States (11-9540).

JUSTICE BREYER: You see why I turn back to the empirical question and keep wondering, why is it not possible to get, say, a law professor; they have spare time — get the sentencing committee, get someone to look and see what are the real behaviors that are convicted under section 459.

MR. HORWICH: I can -­

JUSTICE SCALIA: And then advise defendants who — who anticipate committing these crimes, so that they will know which crimes carry another 30 years. (Laughter.)

JUSTICE BREYER: Well -­

Update: On Facebook, Orin reminds me that when Justice Breyer was at Harvard, professors did not have to write much. Justice Breyer expanded on his publication record at HLS, via Orin’s post:

Those were the days when you just had to write one article [to receive tenure], and actually, I was the first person to whom Harvard ever applied the requirement that you have to write at least one. Erwin Griswold, who had been the Dean of Harvard Law School, had the theory that he knew which people were geniuses. If he approved of them, they would certainly do good work over time, and therefore they had to write nothing. After a while, however, people realized that was not such a wise idea, because someone has to push you to write something so that you see that you can do it. And probably everybody here has gone through that stage, and that’s not a pleasant stage. “How can I possibly write an article?” Everyone goes through that. Oh, they all think that I can, but they do not really understand.

Well, there it was, and moreover, they had a very exalted idea of themselves at Harvard and so it had to be a pretty good article. And I didn’t know a thing about copyright—although that’s exactly the kind of thought I couldn’t dwell on, because it would lead to the temptation to give up.

. . . . One of the less pleasant days of my life was after I’d handed [Dean] Derek Bok my 200-page manuscript to give to the Appointments Committee. He came back and said, “You know, when you write something”—and I didn’t like the tone of his voice—“sometimes it’s worth going over it again before handing it in. Marshal your arguments,” he said, “and use the most interesting points, but do not put in all the less interesting ones.” And that was very good advice. So what ended up being published as The Uneasy Case for Copyright was the expurgated version of something that had all kinds of rambling in it.

Plenty of spare time.

The Green Bag Bobbleheads are moving from my alma matter of George Mason University School of Law to Washington, D.C. Here is the official notice:

Bobblehead forum conveniens: On January 2, 2013, our bobbleheadquarters will move downtown, to the Washington, DC office of O’Melveny & Myers LLP. The firm has generously offered the bobbleheads a home base close to the Court where their role models work. We hope our many friends who work in or visit DC will appreciate the chance to stop by such a convenient address when they have a certificate to exchange for a bobblehead. All the terms of bobblehead certificates remain in force except: (1) the number to call for an appointment to exchange a certificate for a bobblehead has been changed to (202) 383-5300, and (2) the address to which you should go at the appointed time has been changed to O’Melveny & Myers LLP, 1625 Eye Street NW, Washington, DC. Here is our interpretation (directed by Cattleya Concepcion) of the move, featuring Joshua Cumby performing Dukas’s L’apprenti sorcier, and, of course, the bobbleheads.

To commemorate this move, the posted this enchanting video, titled “Bobbleheads and the Right to Travel: Applying Saenz v. Roe to Ceramics” (see Justice Thomas’s dissenting opinion for one of the first writings to take the Privileges or Immunities Clause seriously).

[youtube http://www.youtube.com/watch?v=DrzVSBYdREw]

But at the end of the video, during the credits, there is this gem.

Several justices are thanked: Stevens, O’Connor, Scalia, Kennedy, Souter, Ginsburg, and Breyer. One of these is not like the other?

Justice Breyer is the only Justice on the list not to have a bobblehead. But, he is due for a bobblehead.

The Green Bag has taken a somewhat unorthodox approach to Bobblehead releases, but the most recent additions have been Ginsburg, Thomas, and Souter. Chronologically, Breyer is due.

So, look out for the SGB bobblehead. What will he have? A copy of the House Reports (he loves legislative history)!

See, this is why you never leave a movie early.

Also, do watch Justice Ginsburg’s bobblehead opera.

[youtube http://www.youtube.com/watch?v=ITiR7Vg38eo]

Justice Breyer missed “Talk like a pirate” by a few days in his blatant violation of Godwin’s Law–asking if Hitler is a pirate!

 JUSTICE BREYER: Well, it doesn’t mean that. It doesn’t mean that, but if the — what is the question we’re asking. If, when the statute was passed, it applied to pirates, the question to me is who are today’s pirates. And if Hitler isn’t a pirate, who is? And if, in fact, an equivalent torturer or dictator who wants to destroy an entire race in his own country is not the equivalent of today’s pirate, who is? And we have treaties that say there is universal jurisdiction. Other countries take it.

From Kiobel.

And amazingly, there is a Hitler Pirate Downfall Meme video. Hilarious!