Justice Breyer long known for high-court ‘hypotheticals’

Justice Breyer long known for high-court ‘hypotheticals’

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Justice Stephen Breyer, who plans to step down at the end of the U.S. Supreme Court’s current term, is famous for citing unusual legal hypotheticals during the court’s public oral argument sessions.

Members of the high court use the give-and-take courtroom sessions to pose tough questions to lawyers presenting an appeal. These questions often take the form of hypotheticals, “to patrol the boundaries” of the law, as Breyer once told us. “An odd example can call particular attention to the point you want to explore when interpreting statutes.” Here are some of the more colorful over the justice’s many years on the bench:

“An odd example can call particular attention to the point you want to explore when interpreting statutes.” 

— Justice Stephen Breyer

Lawsuits and effervescent mice

Whether lawyers can protect important clients– including high-level government officials — from going through pre-trial “discovery” depositions, involving allegedly frivolous claims. Dec. 11, 2008.

“Jones sues the president of Coca-Cola. His claim is the president personally put a mouse in the bottle. Now, he [Jones] has no reason for thinking that (actually happened). Then his lawyer says: ‘OK, I’m now going to take seven depositions of the president of Coca-Cola.’ The president of Coca-Cola says: ‘You know, I don’t have time for this; there is no basis… I don’t want to go and spend the time to answer questions.'” 

The justice wondered whether the Federal Rules of Civil Procedure gives lawyers the ability to tell a judge, as Breyer put it: “My client has nothing to do with this, there is no basis for it; don’t make him answer the depositions, please.”

Chief Justice John Roberts called Breyer’s hypothetical “by its nature particularly absurd.”

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Prison time and the ‘pussycat burglar’

Whether certain state misdemeanor crimes can be considered “aggravated felonies” for federal purposes, meaning longer prison sentences or deportation for repeat offenders. March 31, 2010.

 “This is my hypothetical. You’ve heard of cat burglars. Well, this gentleman is called the Pussycat Burglar, and the reason is he’s never harmed a soul. He only carries soft pillows as weapons. If he sees a child, he gives them ice cream. (Courtroom laughter.)  It is absolutely established that this person in breaking into that house at night only wanted to steal a pop gun, and he is the least likely to cause harm in the world. Question: He is convicted of burglary. Is that a crime of violence?”  

Breyer later concluded under the law, burglary is indeed considered a “crime of violence.”

Associate Justice Stephen Breyer poses during a group photo of the Justices at the Supreme Court in Washington, April 23, 2021. 

Associate Justice Stephen Breyer poses during a group photo of the Justices at the Supreme Court in Washington, April 23, 2021.  (Reuters)

Bankruptcy and pet oysters

Whether a bankrupt telecom can keep its government-issued wireless telephone licenses. Oct. 8, 2002.

“Obviously many of my colleagues don’t agree with me, but I learned the second year of law school that when you have a text which says ‘all,’ there are often implied, non-written exceptions: All animals [allowed] in the park. No animals in the park doesn’t necessarily apply to a pet oyster.”  

Breyer later told us he regretted using that example. A better analogy from his dissent in the case was that a municipal ban on ‘vehicles’ in a city park would not reasonably apply to baby strollers.

Human rights and Pirates Inc.

The scope of a federal law increasingly being used hold private businesses financially accountable for human rights atrocities committed overseas. The Alien Tort Statute gives federal courts jurisdiction over claims from foreigners that they were harmed by international law violations. Breyer noted the ATS was passed more than two centuries ago in response to piracy on the high seas. Feb. 28, 2012.

“The principle that here would apply is Pirates Inc. Do you think in the 18th century if they (the government or a private group) had brought Pirates Inc. (to court in a lawsuit), and we get all their gold, and Blackbeard gets up and he says: ‘Oh, it isn’t me, it’s the corporation’ that is responsible — do you think that they would have then said: ‘Oh, I see, it’s a corporation. Good-bye. Go home.'”

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Patents and pesky raccoons

When an invention is an obvious outgrowth of prior technology, and thus is not eligible to be patented. The appeal involved an adjustable gas pedal. Nov. 29, 2006.   

“Now to me, I grant you I’m not an expert, but it looks at about the same level as I have a sensor on my garage door at the lower hinge for when the car is coming in and out, and the raccoons are eating it. So I think of the brainstorm of putting it on the upper hinge, OK? Now I just think that how could I get a patent for that?”

The Supreme Court building in Washington.

The Supreme Court building in Washington. (Associated Press)

Patents and fabulous bicycle pedals

Another patent dispute, this one over computer chips. Jan. 16, 2008.

“Imagine that I want to buy some bicycle pedals, so I go to the bicycle shop. These are fabulous pedals. The inventor has licensed somebody to make them, and he sold them to the shop, make and sell them. He sold them to the shop. I go buy the pedals. I put it in my bicycle. I start pedaling down the road. Now, we don’t want 19 patent inspectors chasing me or all of the other companies and there are many doctrines in the law designed to stop that.”

Drugs and homework

Whether prior state drug trafficking offenses count in federal Armed Career Criminal Act sentencing for repeat ‘violent’ defendants. Jan. 15, 2008.

“Suppose with your own children: I told you half an hour ago not to interrupt your sister when she is doing her homework. This is the second time you’ve done it. Wouldn’t you, with your own child– I would with mine– think that the second time he did it was worse behavior than the first time? I just told him not to.”

Arbitration and Joe Bananas

Dense question on the discretion of federal courts to determine whether an arbitration agreement is “unconscionable,” when parties in the dispute had agreed an arbitrator would decide such “gateway” issues. Should a company’s hand-picked arbitrator be allowed to determine if the corporate dispute resolution system he or she oversees is fair?  April 27, 2010.

“Certainly if the person says: ‘You see my signature there; that’s not mine; that’s Joe Banana’s, who tries to imitate me.’ There is no contract, and no matter what it says, it doesn’t go to the arbitrator. All right? Now, we can argue about whether it is or is not analogous to that when he claims it’s ‘unconscionable.’ There’s a very good argument it is analogous. There’s a very good argument it is like fraud in the inducement, and there are some arguments the other way.” 

‘Joe Bananas’ by the way was the nickname for Joseph Bonanno a Sicilian-born American Mafia crime family leader who died in 2002. Breyer never explained why he used that name in his obscure example, since there is no evidence Bonanno engaged in the kind of contract fraud cited by the justice.

Foreign films for children

Here, in a case about witness tampering, Breyer gets all cinematic. March 29, 2011.

“So let me give you an example, even odder than Justice Alito’s. But I think it illustrates the point — the question.

“Imagine you put your son in his room, and they say why do you keep your son in his room doing his homework? Because I wanted to prevent him from going to the movies. That’s why. Now, when you say that, we would impute, correctly, you wanted to prevent him from going to a Hollywood movie. You wanted to prevent him from going to an old movie, prevent him from going to a new movie, but prevent him from going to a Lithuanian movie? Now, why does that sound so odd? Because there’s no realistic possibility that he would go to a Lithuanian movie. OK.

“Now, if that’s the problem, the words that capture that problem, are their words ‘realistic likelihood,’ not the words ‘possibility.’ So if I have to choose between those two, and that is the problem, why don’t I choose their solution?”

Members of the Supreme Court pose for a group photo at the Supreme Court in Washington. Seated from left are Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, Standing from left are Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett.

Members of the Supreme Court pose for a group photo at the Supreme Court in Washington. Seated from left are Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, Standing from left are Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett. (Associated Press)

Grapes and hairbrushes

A trademark dispute involving Wal-Mart produced one of the more bizarre hypotheticals. Jan. 19, 2000. 

See if you can follow Justice Breyer’s logic:

BREYER: “Well, why should [trade dress protection] always [require secondary meaning]? I mean, you could have a weird situation. Imagine you made a hairbrush in the shape of a grape, and that was it. It’s called the grape hairbrush. I mean, that’s so weird that I guess that people would pick it up…

“As I said at the time: only a bald man could imagine a hairbrush shaped like a grape. Justice Scalia went with the more plausible (indeed, extant) cocktail shaker shaped like a penguin in the written opinion.

“All the products are grape. I mean, you know, you wonder what’s it–going on here with this grape, et cetera. I mean… It’s a whole line. It’s a grape hairbrush, a grape comb, a grape hair curler, and a grape–you know, et cetera. And so, almost instantly when you see it there, you get the idea.”

Sharing in the fun

Justice Breyer and Justice Scalia were colleagues on the court for more than two decades, dear friends on and off the bench. Sometimes Scalia couldn’t help but play off some of Breyer’s wild hypotheticals, a comedic duo for the ages.

2011: 

BREYER: “I can see it’s like a rabbit-duck. You know, is it a rabbit, or is it a duck? And the thing that is so rare in the law…

SCALIA: “It’s a jackalope, maybe. I never heard of a rabbit-duck.”        

The late Supreme Court Justice Antonin Scalia often participated n Justice Stephen Breyer's high-court "hypotheticals."

The late Supreme Court Justice Antonin Scalia often participated n Justice Stephen Breyer’s high-court “hypotheticals.” (Associated Press)

2014:

BREYER: “The bank robbers are in the bank, there are a couple of other customers walk in and one of them says will you please walk over here with me for a second. OK?  They walk two feet to get them out of the way. That doesn’t sound as if that is a lot worse than pistol-whipping somebody.”

SCALIA: “I didn’t understand Justice Breyer’s question, where he said the amiable bank robber says, would you please step over here?”

BREYER: “Yeah, I’m walking into a bank robbery where they have about…”­

SCALIA [interrupting]: “‘Step over there or I’ll blow your head off’ is what he says.”

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BREYER: “My example was meant to encompass a polite, but armed, bank robber.”  [laughter in courtroom]

2014: 

BREYER: “Why don’t you have a kerosene tax?  Everybody pays 8 percent except for railroads. They have to pay 20 percent. OK?  Now, it turns out that the only people who use kerosene besides railroads are ice ­cream wagons.”

SCALIA [later]: “What’s an ice cream wagon anyway?” [laughter in courtroom]

BREYER: “It’s a wagon that uses kerosene to deliver ice cream.” [laughter in courtroom]

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