Breyer Hears Final Oral Argument, Chief Justice Bids Him Adieu

WASHINGTON — Retiring Supreme Court Justice Stephen Breyer heard his last oral argument on Wednesday, with Chief Justice John Roberts Jr. bidding him an emotional farewell after 28 years on the bench.

Though Breyer’s impending retirement won’t officially occur until, in Roberts’ words, the court “rises for the summer recess,” the chief justice used their final moments in the chamber together to express his “deep appreciation for sharing the privilege of the bench with him.”

The 83-year-old Breyer announced his intention to retire in January, giving President Joe Biden an opportunity to nominate a new jurist to the country’s highest court.

Biden then followed through on a campaign promise to nominate the first Black woman to the highest court in the land, and the Senate has since approved the nomination of U.S. Circuit Judge Ketanji Brown Jackson, who will join the court when it returns from its summer recess.

In his letter to the president, Breyer described his years on the bench as “challenging and meaningful.”

He also described his relationship with his colleagues on the court as “warm and friendly.”

Those warm feelings were very much on display Wednesday, as Roberts’ voice appeared to crack at times as he saluted the departing justice.

“As many of you may know,” the chief justice began, “Justice Breyer has announced his retirement from the court effective when we rise for the summer recess. That means that the oral argument we have just concluded is the last the court will hear with Justice Breyer on the bench. 

“For 28 years this has been his arena for remarks profound and moving questions challenging and insightful, and hypotheticals downright silly,” he said, eliciting laughter from an audience that included Justice Breyer’s wife. 

“This sitting alone has brought us radioactive muskrats, and John The Tiger Man,” Roberts said. 

On Wednesday, Breyer appeared a bit more subdued as the court heard arguments in Oklahoma v. Castro-Huerta, the final argument of the 2021-2022 term. 

In the case, the state is arguing it has authority to prosecute non-Native Americans who commit crimes against Native Americans on Native American lands. 

The Justice Department and attorneys for Victor Manuel Castro-Huerta counter that the federal government has exclusive authority.

Castro-Huerta, a non-Native, was convicted in Oklahoma state court of child neglect, and sentenced to 35 years. The victim, his stepdaughter, is Native American, and the crime was committed within the Cherokee Reservation.

During the arguments on Wednesday, Breyer asked how other states view their right to prosecute Non-Native Americans on Native American lands.

“Aren’t there 49 other states?” Breyer asked. “My impression is that in general, the general assumption in the entire country has been that states cannot prosecute the particular crimes, and don’t, when they take place in Indian country. Am I right or wrong about that?”

Kannon Shanmugam, who was representing Oklahoma, responded by saying historically, only a small percentage of states have ever asserted such a right.

“If you win, that assumption, which is almost general, will be changed throughout the country and suddenly Indian tribes will realize the crimes will go into state courts,” Breyer said in response.

Roberts concluded his remarks about Breyer by noting that “at the appropriate time, we will in accordance with tradition and practice, read and enter into the record an exchange of letters between the court and Justice Breyer marking his retirement.” 

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