Retired Supreme Court Justice Stephen Breyer‘s “idiosyncratic” style of questioning contrasts greatly with his successor, Justice Ketanji Brown Jackson, according to legal experts who say she follows a line of more insistent and direct inquiry.
Breyer, a Clinton appointee who is well-known for his whimsical hypotheticals, “kind of keyed up these long questions that were idiosyncratic and didn’t really relate to what the other justices were talking about necessarily, or if they did, they kind of were so long — they were so wind[ing] — that they kind of lost their tie-ins to the other justices,” according to Adam Feldman, founder of the Supreme Court blog Empirical SCOTUS and principal for the data consulting firm Optimized Legal.
After Jackson’s first four oral argument hearings this week, Feldman told the Washington Examiner that Jackson differs from her predecessor in that she “was very tuned into the talking points of these cases, in a similar manner” as Justices Elena Kagan, Sonia Sotomayor, the two other Democratic-appointed justices on the 6-3 court.
In other words, Jackson, whose presence on the court marks the first time four women justices have sat alongside each other, was more synchronized with the other two members of the liberal bloc and “wasn’t going out in necessarily her own direction,” Feldman said.
“[Breyer] went in his own direction. He would ask attorneys regularly, ‘What would you do if you were in my seat?’ to try to get them to talk about where their policy positions were and where they thought things were going to go,” Feldman added.
While their styles may differ from one another, Breyer and Jackson have many similarities as well. Jackson was appointed as a U.S. district court judge in 2011, and the last high court justice to have previously been on a U.S. district court was Breyer. Additionally, Jackson once clerked for Breyer, which made her eventual appointment to his vacant position a notable feat.
And it was Jackson herself who addressed Breyer with humility when President Joe Biden nominated her on Feb. 25. “Justice Breyer, the members of the Senate will decide if I fill your seat, but please know that I could never fill your shoes,” Jackson said.
Jackson spoke more during her first week of oral arguments than at least two justices appointed prior to her — Justice Amy Coney Barrett and Neil Gorsuch — a major point of discussion among court-watchers who sought to analyze the differences between Breyer and Jackson and compare her to other justices’ first weeks on the high court.
In the first oral argument of the term, Sackett v. EPA, the four women on the high court, including Jackson, spoke the most, with Jackson coming in third for the most words spoken at around 976. She also spoke more words on her first day of oral arguments than any of the three appointees of former President Donald Trump on their respective high court debuts, according to Empirical SCOTUS.
“Barrett was more reticent than Justice Jackson in her first oral argument, as she spoke 490 words,” Feldman said of Barrett’s entry to the high court in 2020.
And among some liberal court-watchers who often chide the 6-3 conservative supermajority on the high court, Jackson immediately came across as an effective advocate for the three-member Democratic-appointed minority.
“Breyer was fun, but the punchiness & directness of Justice Jackson’s questions, alongside Justice Kagan’s usual oral-argument mastery, is quite the one-two punch,” said Steven Mazie, who teaches at Bard Early College and is the Supreme Court correspondent for the Economist.
Perhaps the most striking moment of Jackson’s first week was her long-winded “question-statement,” as Feldman puts it, about her definition of the 14th Amendment. That line of dialogue stretched on for 537 words and was seen by many court-watchers as a method to provide a “progressive” lens for the “originalism” jurisprudence that is often touted by Republican-appointed justices.
Prior to Breyer’s retirement, numerous liberal groups, such as the organization Demand Justice, ran a pressure campaign that sought to convince Breyer to leave his post after nearly 28 years on the bench in order to install a progressive-minded justice that would remain on the high court for years to come. Those sentiments were driven by hindsight that the late Justice Ruth Bader Ginsburg should have retired under former President Barack Obama‘s administration to allow him to name a successor rather than former President Donald Trump.
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“I think a lot of people who thought that silence was the best approach in 2013 came to regret that in the aftermath of [Ginsburg’s] untimely passing last year,” said Brian Fallon, executive director of Demand Justice, in a June 2021 interview with NPR. “I think it would be foolish of us to repeat this same mistake and to greet the current situation passively and not do everything we can to signal to Justice Breyer that now is the time for him to step down.”
When asked whether he believes progressive advocates would be satisfied with Breyer’s successor after her first week, Feldman said, “Just based on the evidence that we have, I think that people would say, in my eyes, she’s where the Left would hope she would have been early on.”
