The Legacy of Justice Stephen Breyer

our religious practices. Justice Stephen Brier will step down from the Supreme Court after twenty eight years on the bench. Known as a scholar, a pragmatist, a consensus builder, and an optimist with a professorial air, Briar displayed those qualities in his remarks at the White House on Thursday. The Justice said that in his talks with students, he reminds them that our system of government should still be considered

an experiments. That next generation and the one after that, my grandchildren and their children, they'll determine whether the experiment still works. And of course I'm an optimist and I'm pretty sure it will. Does it surprise you that that's the thought that comes into my mind today? My guest to discuss Justice Friar's legacy is constitutional law scholar Stephen Vladdock, a professor at the University of Texas Law School. Justice Briar has been adamant in the past that justices are

not political. Once they take their oath, they quote, are loyal to the rule of law, not to the political party that helps secure their appointment. But his retirement now before the end of the term, giving the Democratic president plenty of time to get another justice confirmed before possible change in power in the Senate. Is it Briar's acknowledgement

that politics and the court are intertwined. And I think the question is whether you can somehow walk a tight rope between acknowledge and I think everyone has to that the confirmation process is political, that political actors in the form of the President and the Senate are making political decisions about who to nominate about time in while still believing that once the process is oak, once the justices confirmed and takes the oath and joins the bench, that

what they're doing is somehow divorced from politics. And you know, I think Justice Brier maybe the last of his kind in trying to argue forcefully that yes, that's the line that can be preserved that we can have a political, if not partisan, confirmation process and still be judges doing you know, judicial power as opposed to political power. Once we've done our robes, you know, I think the question is how many folks still believe that there are a

lot of textualists on the court now. Briar was more of a pragmatist. Tell us about his approach to the constitution, Justice Brier, and I'm sure part of this is a reflection of his experience, first as a long time Senate staffer, as an administrative law guru, as a professor, and then

June as you know, as a lower court judge. He really thought that when it comes to the structure of government, the best way to think about how the branches relate to each other is, you know, a more functionalist approach, where the branches are not hermetically sealed from each other, where there's power sharing, where the checks and balances are both formal and informal. And the informal part is what often gets missed in contemporary discourse. But Briar knew of

what he spoke. He was part of it when he was working for the Judiciary Committee, when he was involved in the Administrative Conference the United States, and so I think his approach to judge him was the notion that it is not forbidden, it is not a sin to look at the Constitution, to look at statutes, to look at circumstances where judges are allowed to exercise a modicum of independent judgment, and ask what actually makes the most sense, what would be the most administrable, what would be the

most efficient, and that kind of functional as pragmotism used to be a lot more common on the Court. And I think it's, you know, again, another respect in which Briar's retirement may well be the end of an era. Justice Briar was on the bed in nearly three decades, yet he wasn't as well known to the general public as other justices. I don't think folks think about Justice Brier the same way that maybe they think about like Justice Stood to My or Justice Ginsburg, because he wasn't

as visible in cases affecting civil rights, for example. But for all his words, for all his laws, not the site of fact, it was Justice Brier who wrote what until recently it was probably the most important contemporary abortion decision in favor of women's right to choose and the whole Women's health case. In it was Justice Brier who was often writing with the leading decisions in affirmative action cases.

It was Justice Brier who was supported at least a large chunk of the Court's jurisprudence that you know is now in dissent. And so I think what complicates his legacy, June is not him. I think we knew who he was when President Clinton nominated him. It's how much the Court moved around him. It's how different a court he left than the court that he joined, and how he looked through that lens as opposed to the lens that we thought we'd be assessed him through twenty years ago.

Would you describe him as more of a moderate than a liberal? These terms are so subjective. I certainly think that for the duration of his tenure on the Court he was probably the most centrist of the justices typically identified as locals that of the Democratic appointees, and even when Justice Stevenson Suder were still on the Court, that Briar was probably the one closest to the center, and

June we have empirical evidence of that. There were high profile cases where it was Brier who provided the key fifth vote in favor of what we might think it was a more conservative position the ham decase than two thousand and four. It was Brian who provided the fifth vote for the proposition that even American citizens could be

detained as enemy combatant. It was Justice Brier in the series of cases in the early ten who actually traded placed it with Justice Kennedy in some fairly significant questions about the right to sue the government to enforce federal claims against data officers. And so I don't think there's any question that he was certainly the most moderate of

the justices we typically used the L word for. The question is whether that made him a moderate in the abstract, and the same folks is going to disagree about that. Coming up, I'll continue this conversation with Professor Stephen Vladik how the court will change to me that what the judge was saying is wait a minute. Suppose what the guy had said at the company was yes, ishka bibble, tomato children, mob, monopoly, robocall, loving Grandma's green eyed turkeys.

These are just some of the zany, often bizarre hypotheticals. Just as Stephen Bryer posed to lawyers in his three decades on the bench. Imagine he made a hair prush in the shape of a grape. Imagine King tut sitting in front of the pyramid where all his gold is stored. Purpose selifane on depominate signals the presence of a hot dog. Stand a preventium from going to a Lithuanian movie. Now, why does that sound so odd? And Brier once had a partner in his wacky hypotheticals in the late Justice

antonin Scalia. It's like a rabbit duck, you know, is it a rabbit or is it a done jackals a baby? I never heard Now it turns out the only people who use kerosene besides railroads or ice cream wagons. What's an ice cream wagon? Anyway? I didn't understand jessice probes question where he said the the amiable bank Cooper says, would you please, Steven, what do you say? Would you please step up? I'm walking through it your hair office. What he says, my example was meant doing compass of

a polite and armed bank rob. I've been talking to Professor Stephen Vladdock of the University of Texas Law School. Steve, I'm going to miss Justice Bryer in your arguments. He livened up oral arguments by presenting some crazy hypotheticals, and you argued at the court, are those difficult to answer? Difficult to understand? For me? It's funny just say the court I say that, you know he's terrified generations like yeah,

I mean Jessice Briar. He has this sort of a loose effect that I think folks may not fully appreciate it, sometimes not entirely. How do I say inherit that I think, you know, to some degree he's having spawned, at least in some of these cases, with the very fact that you know, we're struggling over these questions. When he starts talking about James Oglethorpe's third cousin, I think able to come up in a case a couple of terms ago. You know, I don't think it's like a class cloud.

Then I think it's that he's just thinking out loud and he's puzzling through these cases. You know the way that he approaches these cases, which is with a very prodomatic bet informed by his very areadite backgrafd. I think arguments will be different after Jessice brier I'm not sure how many of us will miss the you know, three

page long question. I got in trouble once because he asked me a long, multipart question and I sort of I probably took a little bit of liberty, but I said, you know, if I made justice prior, I'd like to answer that three part And he said there was one question. It was his style, dude, And it was a style that was in some respects cute and I think will be probably missed if it doesn't necessarily affectives beyond just how we prepare for arguments. You always hear that Justice

Brian was a consensus builder. President Biden even mentioned it. How did he approach the internal dealings with other justices on cases? From what we know, and of course there's a lot we still don't, Justice Briar was very often one who would try to form coalitions behind the scenes.

We know from reporting, for example by Jana Stupid and jan Crawford Greenberg, that Briar helped afford to compromise in the Affordable Care Act decision, where he and Justice Kagan worked together with Chief Justice Roberts to come up with sort of a series of decisions they could all live with.

We know that he worked in various circumstances with Justice Kennedy before she retired, with Justice O'Connor to forge consensus, and so I think this again goes to how much the court moved around him that by when Justice Kavanaugh replaced Justice Brier, I don't know who was left for him to work with. And I'm not sure that he thought if he still had folks on the right with whom he could forge consents, this at least due in any of the high profile cases where those kinds of

ideological differences tend to manifest. So he was I think for much of his career actively involved in trying to sort of tend the center of the court. And one of the real legacies of his resignation and his retirement, and one of the real sort of darker linings of all of this, is how much that center just no longer exists. As you mentioned, he taught administrative law before being appointed to the First Circuit. Were there issues that

he was passionate about during his long tenure on the court? Oh? I think Justice Brier was very passionate um in ways that perhaps you know, not everyone would be about administrative law, about the relationship between Congress and the executive branch about sort of the public responsibility of the Court to maintain

and facilitate that relationship as opposed to obstructing it. But you know, I don't think we associate him quite the same way with any one particular line of issues or line of cases that, for example, we think about Justice

Ginsburg or even perhaps Justice to my Or. And I think part of that again because where he was most effective was usually out of the limelight, was usually behind the scene, where it wasn't that he was necessarily taken out some very visible public position, or he was really trying to help the Court as an institution move along.

And I think that's why as we hear from the other justices about his forthcoming retirement, I suspect we're gonna hear a lot about that and about how much they enjoyed having him around and how much he aided them in their own sort of approach to their jobs. So that's why I think this is going to be such an interesting process over the coming weeks and months, because Justice Brior, whatever you might think about him, in no

respects was he ever a lightning rod. And I think as part of why this confirmation process is such an interesting departure from the last couple of confirmations that we've been through. Explain how so how it will be different, because it's been incredibly conscientious. The confirmation process has become ugly in certain respect. Yeah, I mean, I think we

everyone had short memories. But if we harken back, you know, twelve years, thirteen years when Justice was nominated to replace Justice Tudor, you know, yeah, there was some of the same ugliness about Justice to Order her background, but compared to the confirmations that would follow it, it was actually

a pretty smooth failing. And I think part of that was because, as with Justice Brier, everyone understood that that particular confirmation was not going to shift to the center of gravity on the course, It was not going to radically change the direction of the Court, and that the justice that Justice Brier was replaced him in. Justice Tudor was a very significant member of the Court, but he wasn't necessarily out on a limb all by himself where

his departure was going to open up. Some gave him whole in the Court's jurisprudence, and if that's very much what this field like as well, where whoever President by the nominator, you know, I think will almost certainly sort of be to the left of Justice brier But of course that's not going to move the court because Justice Briar is no longer anywhere close to the center of gravity.

And I think that's part of why, at least from where I'm stood in I don't think this is going to be as contentious a process as when Justice Kavanaugh was nominated to succeed Justice Kennedy or when Justice Barrett was nominated to succeed Justice Ginsborough, because the sticks June are just still very different. So how would you describe

his legacy on the Court? Um? You know, I think much much the same way that I thought of like Justice stevens legacy when Justice steven stepped down in that you know, Justice Stevens famously was appointed by President Ford was a Republican, a lifelong Republican who, by the end of his career was one of the more solidly reliably liberal votes on the Court. And you know, Stevens, when he was asked in he said, I didn't move so much as the Court moved around UM. And I think,

you know, there was not Um. There's a some play in that. I think, you know, Justice Stevens might have been a little bit exaggerated, but he wasn't totally exaggerated. And I really think, like when we look at Justice Briar's life, that's gonna be a big part of the story, like what might have been. Um, you know, if um, Hillary Clinton wins the election and we have a democratic majority on the Court for the first time since nineteen Justice Brier would have been an enormously important part of

that story. Um. Right, He and Justice Ginsbrod would have been the senior liberals on the Court, UM, and therefore usually in control of the majority in divisive cases. So, you know, I think his legacy is going to be defined,

at least in part by what could have been. I think his legacy will be defined by, you know, how much he sort of lived in the center while there was still a center to live in, alongside Justice Kennedy, Justice O'Connor, And I think because legacy would be defined by sort of an age gone by where having a pragmatic judge on the Court who thought that part of the job was to build consensus across the perceived dial

was actually a feature and not a bug. You're going to have Briar, who's been on the Court for almost thirty years, being replaced by someone new and a black woman. How does that change the dynamic on the court and among the liberals on the court? Three women? Now the most significant thing it does, is it really I think elevates Justice Sodam I or that much further. But she now becomes not just perhaps the rhetorical leader of the liberal wing, but the senior member of the liberal wins.

So when it comes to parcelong outdiscent, for example, in the high profile cases, you know that will fall to her as opposed to Justice Briar. But I also think that the other way it's going to change the dynamics is, you know, I think it is going to reflect yet a further generational change. One has to think that President Biden is going to appoint someone who is at the

oldest in their early fifties. And so if that person serves for as long as Justice Briar serves, I mean the court is going to change again while they're on the court. So I think the internal dynamics will be harder for us to see. I think they will be most heavily felt among the three Democratic appointees and how

they allocate their responsibility. Is there a June that the justice who replaces Justice prior might find her own mechanisms, her own ways of building consensus with some of her colleagues. On the other side, is a relationship between the new justice and justice corsets, for example, on criminal cases a

possibility we'll have to see. But again, I mean, I think what really makes this whole process feel so different from the last couple of times we've been here is that these differences in the short term are going to just pale in comparison to the short term differences we saw between Kennedy and Kavanaugh, Guinsburg and Barrett. Of the list of replacements, does one stand out of the list of replacements, does one stand out? I don't know about one, June.

I think there are two. From where I'm sit in Katangi Brown Jackson and Leandre Krueger are such compelling candidates in different ways and low though I am to bet on any particular candidates in this race, I would be very surprised if it wasn't one of those two. They're both fantastically qualified, They're both very smart, they're both highly regarded June. They had different backgrounds, They have different experience that Catani Brown Jackson was a district judge before she's

an apelogige. She has trial experience. Leando Krueger before she's a California Supreme Court justice was a government lawyer. She worked in the executive press for the absol Regal Council. So I think there are hantilizing opportunities with both of them, and I think it's going to be a good problem for President Biden to have and trying to pick between them and the other names for being bandied about. Thanks so much, Steve, I always appreciate your insights. That's Professor

Stephen Vladdock of the University of Texas Law School. The Supreme Court is passing on Oklahoma's aggressive attempt to topple the president on American Indian reservations and criminal justice established in the landmark case of mcgt va Oklahoma by a vote of five to four. The justices will not review the precedent established in McGirt, but will look at how the ruling applies to state prosecutions of non Indians. It will be one of the last argued case of the term.

Both Indian tribes and the state of Oklahoma applauded the court's order On Friday. Joree me Is Bloomberg Law reporter Jordan Reuben. For those who don't remember McGirt, tell us what that landmark decision of mcg the Oklahoma stands for. So mcgert for Oklahoma stands for the proposition that the Skokie Creek Reservation, which is the reservation and issue in that case, had never been disbanded by Congress. That reservations still stands. It still exists, and by implications, so do

several other reservations in the eastern half of Oklahoma. And that arose in a criminal case by a defendant who was challenging his conviction. He was Native American. He said the state of Oklahoma didn't have jurisdiction to charge him for a crime that took place on the reservation. And so to answer the question, the justices had to take a look at whether that reservation still in fact existed, which made the court go back and look at treaties

and interpret those. And so the court said that the reservations do still in fact exist, and so that's what wounds up having this transformative effect on criminal justice and potentially some other areas of the law in Oklahoma. Remind us about the reaction to the ruling from the State of Oklahoma and the Indian tribes in Oklahoma. Sure so,

from the state's perspective, and this was true. Heading into the decision, the state was warning that there would be chaos breaking out if the state didn't have jurisdictions to prosecute certain crimes, and that jurisdiction would then fall to tribes and the federal government, which the state said wasn't

equipped at all to handle those things. That's what the state was saying ahead of the argument, And so then after the state lost the decision, it essentially reiterated those state arguments, saying, telling the court, Hey, all these things that we warned you about that we're going to happen, those in fact did happen, and now we want you

to fix it by reversing the decision. The tribes those say that that's not true, that that narrative of chaos is not what's playing out in Oklahoma, and that to the extent there is this chaos, it's because of the state challenging them a gert decision itself, and not cooperating. So there's a circular effect to all of this. But the state and the tribes really aren't totally opposite ends

of the spectrum. And when I say the state and the tribes, talking about the governor Stitch, who has been challenging this, there has been cooperation between the tribes and different state officials on the lower end, but at the higher end of it from the governor's office and the tribes, it's really been a serious battle there. So the State of Oklahoma asked the Supreme Court to reverse a decision it just handed down in that that's set a precedent

for American Indian reservations. That's right, and so it's a pretty bold request. We hadn't really seen anything quite like this. It's obviously not unprecedented for the Court to overturn its precedent, but this request was unusual for how quickly it was being made, and being made obviously because of a change in composition on the court, with Justice Ginsburg having been in the five four majority against the state and then

her dying and being replaced by Ammy Coney Barrett. Were there more than thirty petitions to the court, There were, and they were all raising this same issue, and so the state was raising this question of attempting to try and overturn the decision in as you said, over thirty petitions to the court, most of which were denied today on Monday, January denied in terms of the question of whether to overturned the precedent, But the Court did grant

review on Friday of a related question that doesn't involve straight up overturning the decision. So explain what the court says it will review. So the court is going to review question of how mcgert applies to non Indians, the state's power over prosecuting non Indians. Mcgert involved in Indian defendant, But in the state's eyes, that left open the question of whether a state can prosecute non Indians who commit crimes against Indians in Indian country, which is the legal

term referred to for the reservation. And so it's essentially still a question about state power and state authority, which was what's happening against the backdrop of the broader mcgert issue, but now in a narrower way, not taking on this broader question of whether to straight up overturn the decision that the court just issued. So Jordan's is there any way the Justices could cut back on the part of

the ruling they say they're not reviewing. They certainly could, But I think that no matter what the court winds up doing, whether it's seen as cutting back or expanding, is going to depends on from what vantage point you're viewing the case to begin with. Because, certainly, from the tribes perspective, that could be seen as cutting back on mcgert. From the state's perspective, not applying the states authorities and non Indians would be seen as an impermissible expansion of mcgart.

So we see this in other cases to where whether you're talking about expanding or narrowing can depend on where you're sitting where you're viewing this from. But certainly the court can wind up in some ways narrowing the effect of the mcgret decision. And both sides applauded the Supreme

Court's order to take this right. So when Oklahoma was petitioning the court asking the Court to overturn the mcgret decision, you had tribes affected by the ruling filing amicus briefs telling the Court not to reverse this decision, which the tribes had really hailed as a import landmark ruling, and so then obviously when the court denied review of that

broader question, the tribes applauded that. And I thought it was interesting that in his statement on the court granting review of just an narrower question, Governor Stitt also applauded the ruling the decision to take on this narrower question as well, without really acknowledging the fact that the state had lost its attempt to take on the broader issue.

It takes four votes to grant review of a case, and does it seem as if it wasn't Gorsage and the three liberals who were in the majority of McGirt who would have authorized this. It seems like it's the conservatives, right, those might have been the least likely, I would say, out of those four who are left from the majority decision. Of course, that even though he authored mcg could potentially have still been the most likely out of those four.

Two have granted review of this question because in some ways it is an issue that does in directly implicate the broader interests of mcgred, although some people think that it might, but it's certainly possible that more than for Justice were willing to take on this issue. But as you said, the fact that the Court keeps this sort of vote secret, we just don't know, at least for now.

And the only difference in the composition of the court is that Emmy Coney Barrett has replaced Justice Ruth Bader Ginsburg. That's right, and not in their legal filings. But state officials, at the same time that they were attempting to reverse the decision made public comments directly saying that that they hope that the change in composition of the court would help the Court to change course in the state's favor.

So that wasn't the direct legal argument that the state's lawyers were making, but that was obviously the effect of what they were saying. And on top of that, the governor directly made that statement in at least one interview that I came across. So I remember when we talked about this earlier, when Oklahoma was asking the Supreme Court to overturn it, it seemed like it would be, you know, odd for the Court to grant reviews so soon afterwards. But did this come as a surprise that the Court

granted this limited review. Not to me, because before the state injected this attempt after Justice Ginsburgh died too overturn mcger This was an issue that the state was pushing for even before then, and so at that point I thought that there was going to be a decent chance that the state was going to take on this issue of the states jurisdiction after mcgart once they also requested to straight up over turn mcgert. I would have been very surprised if the Court had even granted review of

that question. But as to the question the Court did grant review on, I wouldn't say that that's too surprising. So the claims that Oklahoma has made, you know, sort of the chaos in Oklahoma after the decision, has any of that been shown to be true or is that just exaggeration? So I think it's probably both that there are some things that are true and there are some

things that are being exaggerated. When you whenever you have a decision that's affecting criminal defendant's rights, there's no doubt there are always going to be cases that either wind up getting prosecuted differently or don't wind up getting prosecuted at all. That's a fact of life. That's what happens when the court applies the law sometimes. Now, I don't think that it's the case that there is this chaos

to the extent that the state is painting. It's certainly not from talking to people who are working with the tribes on the ground there and reporting that I've done. But that's certainly not to say that there haven't been real effects from Mcgert. I think everybody agrees about that. It's more of just a question of what does the law say. And in Mcgert it said that the state doesn't have this jurisdiction, and now there's the question of whether the state has this now or form of jurisdiction.

And so these questions about the effect of the ruling are really almost besides the point. Obviously they're super important on the ground that as to the specific legal question, these are questions about statutory interpretation and treaties. It's just that these other issues are getting brought up in the background and really trying to be used to press the justice to rule a certain way. And um, when will this be heard? Will it be heard this term or

next term? It will be heard this term? And that's actually a more interesting question than usual about when a case is going to be heard, because it looks like this is going to be the last case that kind of squeaked in right at the last minute to be heard this term, because this past Friday was sort of the unofficial last day that the court could have granted a new case to be heard this term, and usually when a court is granting review of a case, it

won't say exactly when it's going to be heard, but to put aside any doubt in the courts order, it said this case is going to be argued in the last session in April, and put the case even on a somewhat expedited briefing schedule, And so we know that the case is going to be heard this term according to the court, and it might well be the last case granted to be heard this term. Thanks so much, Jordan. As always, that's Bloomberg Law reporter Jordan Ruben, and that's

it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, Slash podcast Slash Law, and remember to tune in to the Bloomberg Law show every week night at ten BM Wall Street Time. I'm June Grosso and you're listening to Bloomberg