Justice Breyer Draws Laughs With ‘Drain The Swamp’ References In Endangered Frog Case

Michael Bastasch | Energy Editor

U.S. Supreme Court Justice Stephen Breyer drew laughter Monday after repeating “drain the swamp” in oral arguments over the habitat of an endangered frog.

“Now, on that, the agency has found, well, it’s not that hard to drain the swamp. Good chance we’ll do it,” Breyer said during the high court’s first oral argument of the new term.

“Good chance we’ll do it. You say: Ha, they don’t know what they’re — well, I mean, you’re polite about it,” Breyer said to laughter, according to the oral argument transcript.

Breyer’s using of President Donald Trump’s campaign slogan came during oral arguments in the case Weyerhaeuser Company v. United States Fish and Wildlife Service.

In that case, landowners sued the federal government for designating about 1,500 acres of private property as “critical habitat” for the dusky gopher frog, which is protected by the Endangered Species Act.

The frog, however, does not live on that 1,500 acres. In fact, the government would have to extensively modify the land to make it habitable for the frog should its current habitat in Mississippi become unsuitable. (RELATED: Landowner Explains Why The US Supreme Court Should Stop The Feds From Taking His 1,500-Acre Property In The Name Of A Frog)

Plaintiffs want the high court to strike down the Obama-era critical habitat decision, which they say has already devalued their land. Breyer’s “drain the swamp” references regarded hypothetical actions the government could take to make the land habitable.

“So this land will have the air, but it’s a big swamp,” Breyer said while questioning the plaintiff’s attorney. “But maybe we’ll drain it. So, if we drain it, it’s going to be fine.”

On Breyer’s third or fourth reference to “drain the swamp,” fellow Justice Samuel Alito could not “contain a smile,” according to SCOTUSblog, which covered the high court’s first day of oral arguments on Monday.

Breyer seemed “unaware that the phrase plays double duty in President Trump’s rhetorical arsenal,” The Wall Street Journal noted in its write-up of the case’s oral argument.

Breyer is second only to former Justice Antonin Scalia in his ability to get a rise out of the high court chamber. Breyer’s remarks earned laughter at least twice during Monday’s oral arguments, according to Boston University law professor Jay Wexler

Wexler, who tracks laughter in the Supreme Court, said Breyer got the most laughs by far in the 2017 term — a whopping 38.

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