Justice Stephen Breyer on Monday reflected on the Supreme Court’s return to in-person oral arguments earlier that day, saying he prefers the high court’s usual structure over the virtual system the nine jurists had started using just after the Covid-19 pandemic paralyzed much of the country last year.
In a wide-ranging interview with CNN’s Joan Biskupic at an event hosted by the Smithsonian Associates, Breyer, the court’s senior liberal justice, shared details about life at the court amid the pandemic, explaining how the phone system that was set up for virtual oral arguments in March 2020 made it more difficult for justices to try to grasp where their colleagues were on a particular issue.
“I mean you can’t really see what the people look like, how are they reacting. You can’t pick up something that your colleague said so easily. What is this colleague — what does he or she think of what’s going on. And when you’re there in person it’s a more human thing,” Breyer said. “And I’d say that’s what it was: a big improvement today.”
The justice noted that one advantage of virtual arguments was that “since we knew we were each going to have a turn of two or three minutes … you focus on the question and you focus on the answer — and that’s helpful.”
Breyer said he was “glad” that Justice Clarence Thomas, who famously rarely asks questions from the bench during arguments, was the first to ask questions in both of the cases heard on Monday, the first day of the court’s new term.
“Personally, I’m very glad that he did ask questions and I imagine will continue to do so. And he’s had plenty of chances to do that — he doesn’t like to interrupt other people,” he said of Thomas, one of the court’s most conservative members.
Other changes have come to the court, too, Breyer said, with the 83-year-old jurist revealing that the members on Monday rubbed had elbows before starting oral arguments and entering their private conference — a departure from their longstanding tradition of shaking hands with one another before starting their duties.
“We’re rubbing elbows,” he said, smiling as he rotated his elbow in midair.
The justice also said that he and his eight colleagues are receiving regular coronavirus tests, something that proved effective last week, when the court said Justice Brett Kavanaugh — despite being vaccinated — had tested positive for the virus.
But the justices on Monday continued their other tradition of having lunch together, Breyer said, adding that they avoid discussing politics during their meal and instead opine about other things, like the Washington football team.
Hecklers demand Breyer’s retirement
Breyer, who has been facing calls for his retirement since President Joe Biden was sworn into office and Democrats gained a slim majority in the Senate, was hounded with those very calls on Monday, when hecklers twice interrupted the interview with signs urging the justice to quit.
“That’s their point of view. I’ve said pretty much what I’ve had to say. There are a lot of considerations and I don’t want to add to what I’ve had to say tonight,” he said.
“I’ve also said that I hope I don’t die on the Supreme Court, and there we are,” Breyer said.
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