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October 6, 2020

Hear Directly from Supreme Court Justice Stephen Breyer Oct. 8

When United States Supreme Court Associate Justice Stephen Breyer joins the Kennedy Institute for a new program, we will hear from a jurist who four times in the past two years delivered one of the Court’s crucial five votes — solidifying the majority in cases.

By Lauren Scribi

When United States Supreme Court Associate Justice Stephen Breyer joins the Kennedy Institute for a new program in the Getting to the Point series on Thursday, October 8, at 11:00 a.m., we will hear from a jurist who four times in the past two years delivered one of the Court’s crucial five votes — solidifying the majority in cases involving reproductive rights, immigration, anti-trust laws, and Native American land rights.

Justice Breyer worked closely with Senator Edward M. Kennedy in the 1970s as Special Counsel and Chief Counsel to the Senate Judiciary Committee. Appointed to the high court in 1994 by President Bill Clinton, Justice Breyer has been described by legal scholars as dedicated to “making the law more sensible.” Breyer himself has said, when assessing a law’s constitutionality, that he looks closely to both its “purpose and consequences.”

Between now and the end of this year, it is possible that Justice Breyer may be joined on the court by Judge Amy Coney Barrett, whom President Trump nominated on Saturday, September 26, to join the Court, sparking nationwide controversy over the propriety of such a nomination just 38 days before a national election.

As we look forward to Justice Breyer speaking in this moderated conversation with Ari Melber, MSNBC’s Chief Legal Correspondent and host of “The Beat with Ari Melber,” about highlights of recent Supreme Court rulings, its role checking and balancing the legislative and executive branches, and how elections affect who is nominated to serve on the high court, here is a look back at four recent cases in which Justice Breyer’s vote proved to be among the deciding ones.

1. June Medical Services v. Russo (2020)
The State of Louisiana passed a law requiring all doctors who perform abortions to also have admitting privileges at nearby hospitals. This law would have effectively limited abortions to one single doctor in the state as other doctors had not yet gained admission privileges or were outside the given range of nearby hospitals. Additionally, Louisiana’s new law was almost identical to a Texas law that had been the subject of a previous Supreme Court case, Whole Women’s Health vs. Hellerstedt, which was also ruled unconstitutional.

In a 5-4 ruling with a plurality opinion authored by Justice Breyer, the Court ruled that the Louisiana law was unconstitutional, reversing the decision of the Fifth Circuit. In addition to noting how closely the Louisiana law resembled the Texas law that the court had already struck down, Justice Breyer wrote: “The evidence also shows that opposition to abortion played a significant role in some hospitals’ decisions to deny admitting privileges.”

2. Department of Homeland Security v. Regents of the University of California (2020)
Deferred Action for Childhood Arrivals (DACA) is a program that was created by President Barack Obama to shield eligible young undocumented immigrants from deportation. The program currently protects 700,000 undocumented immigrants who were brought to the United States as children. DACA recipients must reapply every two years. In 2017, Acting Secretary of Homeland Security Elaine C. Duke announced that the Department of Homeland Security would no longer accept new DACA applications and that only DACA recipients whose benefits were supposed to expire in the next six months could reapply for DACA status.

The Regents of the University of California college system, many of whose students are protected from deportation by DACA, sued the Department of Homeland Security, contending that its actions violated the Fifth Amendment’s due process protections. By a 5-4 majority that included Justice Breyer, the Court ruled that the decision to rescind the DACA program was “arbitrary and capricious” under the law and struck it down.

3. McGirt v. Oklahoma (2020)
Jimcy McGirt was convicted of three serious sexual offenses by an Oklahoma state court. However, McGirt, an enrolled member of the Seminole Nation of Oklahoma, claimed that, under the law, his case could be tried only by a federal court because the crimes occurred within the jurisdiction of a Creek tribal reservation. In a 5-4 ruling in which Justice Breyer ruled with the majority, the Court sided with McGirt that the location in question was indeed on tribal property and, further, that roughly half of Oklahoma remains Native American land today because Congress had never rescinded earlier treaties granting Native peoples sovereignty.

4. Apple v. Pepper (2019)
Purchasers of iPhone apps seeking to sue technology giant Apple Inc. for antitrust violations won the chance to continue to pursue those claims through this case in which Justice Breyer again joined a 5-4 majority.

The consolidation of three prior cases filed in California, Apple v. Pepper involves complex questions of how to apply a 1977 case precedent — involving the manufacturing of bricks in Illinois — to determine who is a “direct” or “indirect” purchaser of a product and thus has the legal standing to file an antitrust claim.

Justice Breyer and four other justices rejected Apple’s argument that it is only a “reseller” of apps consumers buy from developers, noting that Apple bans developers from selling apps on other platforms, is involved in setting the price of apps, and collects a commission of up to 30 percent. While not ruling on antitrust questions at the center of the case, the 5-4 Supreme Court ruling allowed the class action antitrust suit to continue moving forward in lower courts.

The Institute is grateful and honored for the rare chance to hear directly from a member of the nation’s highest court as well as a distinguished jurist who Senator Kennedy mentored and deeply admired both professionally and personally. Please join us for Getting to the Point with Supreme Court Justice Stephen Breyer on Thursday, October 8, at 11:00 a.m.

Registration for the event is available here.

The Edward M. Kennedy Institute for the United States Senate is a nonprofit, nonpartisan, civic education organization in Boston envisioned by the late Senator Edward M. Kennedy. Through a range of exhibits, interactive educational offerings, and topical programs, the Institute engages students and visitors in a conversation about the essential role each person plays in our democracy and in our society.