Breyer Is Back Lobbing Hypotheticals at First Circuit Return (1)

Retired US Supreme Court Justice Stephen Breyer asked hypotheticals about punching law enforcement officers and driving a motorcycle through the Boston Common in his first day back hearing cases for the First Circuit.

Breyer, 86, returned to the bench Wednesday as an active questioner after a more than two-year-long hiatus since he stepped down from the high court. In that time, he published a book and has been teaching at Harvard Law School, as well as making public appearances at First Circuit events.

“Just walking around this morning looking at the harbor from the court, I thought, it’s old home again,” said Breyer, who sat on the First Circuit from 1980 until his appointment to the US Supreme Court in 1994. Breyer was chief judge on the Boston-based court from 1990-1994, though he ceded the middle chair on the appellate panel to current Chief Judge David Barron.

The benches in the US Court of Appeals for the First Circuit were packed with observers excited to see the celebrity in the room.

“It’s a privilege to sit here,” Breyer said before diving into the first case of the day.

‘A Gentleman’

Breyer, Barron, and Judge William Kayatta heard cases on a defendant’s conviction for assaulting a police officer, a bankruptcy, and a Maine vacation town’s attempt to limit cruise ship passengers from flooding their streets.

Breyer was a commanding but humble voice on the panel. He and Barron often smiled at each other or chuckled when Breyer caught an attorney up in a complicated hypothetical. Breyer asked Barron for permission to squeeze a final question after an attorney’s oral argument time had run out.

He also brought a personal touch to the bench. In the Maine case, Breyer asked why the town of Bar Harbor can’t enforce local regulations when many national, state, and local parks “are regulated like mad.”

Timothy Woodcock, a shareholder for Eaton Peabody representing groups fighting the ordinance, responded that there’s a difference between a national park and a municipality.

“I’m talking also about local parks like Rossi playground where I used to play when I was eight years old in San Francisco,” Breyer said.

Breyer later said Woodcock’s logic would give Boston no recourse if someone thought it was important to ride their motorcycle across Boston Common, or if, “as my grandchildren would say, it’s really important to let us take our scooters.” His point drew a laugh from observers.

In the hallway after arguing, Kurt Peterson, an associate for McKee Morgan LLC who represented the defendant in the police officer case, said he was “definitely a little worried” when he realized Breyer would be hearing his case. “I remember listening to his oral arguments in law school,” Peterson said. “They’re long questions that are difficult to answer, and I was concerned about my ability to keep up with him.”

Peterson said Breyer’s demeanor on the First Circuit matched up with his behavior on the Supreme Court. “The way in which he was asking questions, I felt myself smiling because I was expecting that same exact type of question.”

Jonathan Benner, senior counsel for Thompson Coburn LLP who represented parties in the cruise ship case, said after arguing that it wasn’t his first time appearing before Breyer, having also argued at the Supreme Court.

“When I saw that he was going to be on the panel I was thrilled,” Benner said. “He’s a gentleman. He’s smarter than all the lawyers. And he asks pointed questions that are well grounded in the record.”

Breyer’s homecoming was particularly exciting because of his deep involvement in the First Circuit, Barron said in remarks before oral arguments. “This is a day nearly three decades in the making” because Breyer played a role in designing the courthouse where the First Circuit sits, Barron said.

“He has been otherwise occupied and so hasn’t had a chance to sit in the courtroom, so this is his first time to sit in the courtroom that it was his idea to create,” Barron said.

Riding the Circuit

Circuit courts are assigned a Supreme Court justice to consider some of their appellate matters. Justices in the nineteenth century used to travel to their designated regions and hear cases in a practice called “riding the circuit.”

Breyer isn’t the first Supreme Court justice to hear lower court cases following retirement.

The late Justice Sandra Day O’Connor sat with the Ninth Circuit seven times after her retirement from the high court, hearing 31 cases from 2006 to 2013. She also had a stint with the First Circuit in 2008.

Justice David Souter heard 412 cases when he sat with the First Circuit between 2010 and 2020. He wrote at least 122 opinions.

Attorneys who argued before Souter said he was rather deferential to his panel and not a big questioner, unlike Breyer.

“It was certainly an exciting experience. I’ve never appeared before the Supreme Court, so it was my fake way of being in the Supreme Court,” said Kimberly Wehle, a professor at the University of Baltimore School of Law. Wehle argued before Souter at the First Circuit in 2020.