Justice Breyer conjures images of raccoons, oysters, ‘tomato children at high court arguments

By MARK SHERMAN
Associated Press Writer
WASHINGTON (AP) — The nine justices in black robes file into the Supreme Court consumed with thoughts about the great legal issues of the day. Only one of them is likely to ask questions involving raccoons, an unruly son, pet oysters or even the dreaded “tomato children.”
When Justice Stephen Breyer leans toward his microphone at the end of the bench, lawyers can expect to be asked almost anything. The 69-year-old Breyer is the court’s most frequent practitioner of the hypothetical question, a conjurer of images that are unusual and occasionally bizarre.
“The last time I was up there arguing, it was easier for him to wrap his mind around bicycle pedals,” said Carter Phillips. The experienced Supreme Court lawyer recalled an exchange with Breyer during arguments over patents for computer chips.
“He kept shifting the focus over to bicycle pedals and I was trying to live with him in that world,” Phillips said. “I was taking the bicycle pedals and putting them on my Stair Master.”
The hypothetical is a mainstay of Supreme Court arguments. At their best, such questions help justices address what is bothering them after they have pored over hundreds of pages of dense, often dry legal briefs.
“The point is to try to focus on a matter that is worrying me,” Breyer said in an interview with The Associated Press. “Sometimes it’s easier to do that with an example.”
From the lawyer’s perspective, the well-constructed example “helps focus the mind,” said Roy Englert, a Supreme Court lawyer who studied antitrust law under Breyer at Harvard Law School.
One recent case involved punishment for repeat criminals under a difficult-to-decipher provision of federal law. The image Breyer called to mind was one to which any parent or sibling could relate.
“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?” Breyer said. “I just told him not to.”
The point was succinct and sweet. “It’s a familiar example, your honor,” conceded Charles Rothfeld, the lawyer for the recidivist whose case was before the court.
The justices generally have distinct styles in the way they ask questions.
Antonin Scalia makes liberal use of sarcasm. John Paul Stevens begins with an unassuming, “May I ask ...?” Then, Phillips said, “it’s a dagger through the heart.” Ruth Bader Ginsburg digs deep into the case record and is a stickler for following the rules.
Breyer, said Supreme Court specialist Thomas Goldstein, sometimes comes up with a situation “that is so extreme that it makes you think just about the legal principle because the facts are impossible.”
Or, as Breyer said, “An odd example can call particular attention to the point.”
Goldstein was on the receiving end of such a question in a dispute last year over the patent for a gas pedal.
“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,” Breyer said. “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?”
Englert said Breyer is still the law professor he knew 30 years ago. “He had to learn how to keep a bunch of 22-to-25-year-olds entertained and interested,” Englert said.
Which could explain the line of questioning in the court’s consideration a few years back of laws allowing the use of marijuana for medicinal purposes.
Probing an argument about the federal government’s interest in someone who grows pot plants, Breyer said, “You know, he grows heroin, cocaine, tomatoes that are going to have genomes in them that could, at some point, lead to tomato children that will eventually affect Boston.”
The examples do not always work, as Breyer himself has acknowledged.
Consider the case of the domesticated mollusk, which Breyer tried to use to illuminate a fight over control of billions in wireless telephone licenses. “The result was unfortunate,” he said, looking back at the case.
“No animals in the park doesn’t necessarily apply to a pet oyster, OK,” he began.
Breyer was reaching back to an example from law school that involved vehicles, not animals. By the time he wrote a dissent in the case, his memory had been refreshed.
“’No vehicles in the park’ does not refer to baby strollers or even to tanks used as part of a war memorial,” he wrote, arguing against too literal a reading of the law in question.
Published in The Messenger 3.19.08

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