Category: Supreme Court

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FAN 20.1 (First Amendment News) – Supreme Court Hands Down Abortion Buffer Zone Case (9-0)

Thursday, June 29, 10:28 a.m.: The Supreme Court just handed down its decision in McCullen v. Coakley (9-0).

→ The opinion can be found here.

→ Yet another First Amendment majority opinion by the Chief Justice (that makes 12).

Commentary by Tom Goldstein at SCOTUSblog: The abortion protests ruling is relatively narrow. The Court makes clear that states can pass laws that specifically ensure access to clinics. It holds that states cannot more broadly prohibit speech on public streets and sidewalks. It also notably rejects the protesters’ broadest arguments that such restrictions require strict constitutional scrutiny and are viewpoint based. A state can go beyond narrow laws that block obstructions to clinics, and more broadly ban abortion protests, only if it builds a record showing that the narrower measures don’t work. The S. Ct. majority says nothing about its prior buffer zone ruling in Hill, the validity of which now seems in real question. 

→ Harris v. Quinn (opinion to be handed down this Monday).

Review still pending in Minority Television Project, Inc. v. Federal Communications Commission, which involves a federal law that prohibits public radio and television stations from transmitting paid advertisements for for-profit entities, issues of public importance or interest, and political candidates. The 9th Circuit, sitting en banc, ruled against the broadcasters. Chief Judge Alex Kozinski (joined by Judge John Noonan) dissented, and Judge Consuelo Callahan concurred in part and dissented in part.

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Petitioner: Eleanor McCullen (pic by Steven Senne)

The Abortion Clinic Buffer Zone Case: McCullen v. Coakley

Facts: “Three of the plaintiffs regularly engage in ‘sidewalk counseling’ at the Boston clinic. McCullen parks her car on Commonwealth Avenue and festoons it with pro-life signage; Zarrella sometimes prays aloud; and Cadin from time to time holds aloft a large pro-life sign. A fourth plaintiff, Smith, has demonstrated outside the Boston clinic for many years. He has displayed a crucifix, sung religious hymns, and prayed aloud. His prayers are meant to be heard by passersby in hopes of persuading them to opt against abortion. He sometimes brings a loudspeaker to amplify group prayers that occur outside the clinic on the second Saturday of every-month and on Good Friday.” (Source: 1st Cir. opinion)

A Massachusetts law provided for a fixed 35-foot buffer zone around the entrances, exits, and driveways of abortion clinics.

The issues in the case were:

(1) Whether the First Circuit erred in upholding Massachusetts’s selective exclusion law – which makes it a crime for speakers other than clinic “employees or agents . . . acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility” – under the First and Fourteenth Amendments, on its face and as applied to petitioners; and

(2) whether, if Hill v. Colorado permits enforcement of this law, Hill should be limited or overruled.

The First Circuit rejected the Plaintiff’s First Amendment claims. The Supreme Court reversed.

Vote: 9-0

Majority Opinion: Chief Justice Roberts

Concurring Opinion: Justice Scalia (joined by Justices Kennedy and Thomas) concurs in judgment. Justice Alito wrote a separate opinion, concurring in the judgment.

Justice Scalia argues that Hill v. Colorado  should be overruled, which today’s opinion does not formally do.

Counsel

  • Mark L. Rienzi for Petitioners
  • Jennifer Grace Miller for Respondents
  • Ian H. Gershengorn for United States (amicus curiae for Respondents)

Amicus Briefs

Among those filing amicus briefs were the following:

  • Cato Institute (Ilya Shapiro) for Petitioners
  • American Center for Law & Justice (Jay Sekulow) for Petitioners
  • Rutherford Institute (John W. Whitehead) for Petitioners
  • Michigan & 11 other States (Bill Schuette) for Petitioners
  • ACLU (Steven R. Shapiro) for Neither Party
  • New York State, et  al (Eric T. Schneiderman) for Respondents
  • Planned Parenthood (Walter Dellinger) for Respondents
  • American College of Obstetricians and Gynecologists, et al (Jack R. Bierig) for Respondents
  • National League of Cities, et al (Mary Jean Dolan) for Respondents
  • Anti-Defamation League, et al (Jeffrey S. Robbins) for Respondents
  • National Abortion Federation, et al (Maria T. Vullo) for Respondents

Hat tip to SCOTUSblog for its remarkable real-time coverage of today’s decisions.

NOTE: My next scheduled FAN column will provided detailed information re the Roberts Court’s overall record in First Amendment freedom of expression cases. It will also include facts and figure re the Court’s 1-A work this term.

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The U.S. Supreme Court’s 4th Amendment and Cell Phone Case and Its Implications for the Third Party Doctrine

Today, the U.S. Supreme Court handed down a decision on two cases involving the police searching cell phones incident to arrest. The Court held 9-0 in an opinion written by Chief Justice Roberts that the Fourth Amendment requires a warrant to search a cell phone even after a person is placed under arrest.

The two cases are Riley v. California and United States v. Wurie, and they are decided in the same opinion with the title Riley v. California. The Court must have chosen toname the case after Riley to make things hard for criminal procedure experts, as there is a famous Fourth Amendment case called Florida v. Riley, 488 U,S, 445 (1989), which will now create confusion whenever someone refers to the “Riley case.”

Fourth Amendment Warrants

As a general rule, the government must obtain a warrant before engaging in a search. A warrant is an authorization by an independent judge or magistrate that is given to law enforcement officials after they properly justify their reason for conducting the search. There must be probable cause to search — a reasonable belief that the search will turn up evidence of a crime. The warrant requirement is one of the key protections of privacy because it ensures that the police just can’t search on a whim or a hunch. They must have a justified basis to search, and that must be proven before an independent decisionmaker (the judge or magistrate).

The Search Incident to Arrest Exception

But there are dozens of exceptions where government officials don’t need a warrant to conduct a search. One of these exceptions is a search incident to arrest. This exception allows police officers to search property on or near a person who has been arrested. In Chimel v. California, 395 U.S. 752 (1969), the Supreme Court held that the police could search the area near an arrestee’s immediate control. The rationale was that waiting to get a warrant might put police officers in danger in the event arrestees had hidden dangerous items hidden on them or that arrestees would have time to destroy evidence. In United States v. Robinson, 414 U.S. 218 (1973), the Court held that there doesn’t need to be identifiable danger in any specific case in order to justify searches incident to arrest. Police can just engage in such a search as a categorical rule.

What About Searching Cell Phones Incident to Arrest?

In today’s Riley case, the Court examined whether the police are allowed to search data on a cell phone incident to arrest without first obtaining a warrant. The Court held that cell phone searches should be treated differently from typical searches incident to arrest because cell phones contain so much data and present a greater invasion of privacy than more limited searches for physical objects: “Cell phones, however, place vast quantities of personal information literally in the hands of individuals. A search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson.”

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FAN 20 (First Amendment News) — New Book, New Legislation, New Study & More News

No First Amendment cases from the Supreme Court today. Most likely tomorrow (perhaps Monday?).

→ What’s left? The only First Amendment free expression cases left to be decided this Term are:

  1. McCullen v. Coakley
  2. Harris v. Quinn

New Book — Tribe & Matz on Roberts Court & Free Speech 

Laurence Tribe

Laurence Tribe

In May of 2013 I profiled a forthcoming book, which has just been released. “Forty-five years after the publication of his first book (Technology: Process of Assessment and Choice), Laurence Tribe is preparing to release another book, tentatively titled Uncertain Justice (2014).” I wrote that in SCOTUSblog. “This forthcoming offering,” I added, “will come out six years after Tribe’s last book (The Invisible Constitution). The book will be the Harvard Law professor’s sixteenth. Like a few of his other works, Uncertain Justice will be co-authored – this time Joshua Matz is his literary partner on this work on the Roberts Court.” Well, wait no more; here it is: Uncertain Justice: The Roberts Court & The Constitution (Henry Holt, 2014). Mr. Matz is a Harvard law graduate who clerked for Judge Stephen Reinhardt and will soon clerk for Justice Anthony Kennedy.

Joshua Matz

Joshua Matz

While Uncertain Justice has received some early favorable reviews, my focus here is on only two chapters in the book: Chapter 3 (“Campaign Finance: Follow the Money”) and Chapter 4  (“Freedom of Speech: Sex, Lies & Video Games”). Together, these chapters consume 165 of the book’s 320 pages of text.

↓→ Campaign Finance

“The truth is somewhere in the middle.”

In a galvanized world of frenzied litmus-test beliefs over the role of money in our electoral system, Tribe and Matz (T&M) can be refreshingly open-minded: “It is easy to lose sight of the fact that Citizens United posed incredibly difficult questions about free speech, popular sovereignty, and political equality,” they write. “Deciding when Congress can ban certain disfavored speakers from the marketplace of ideas or limit how much they can speak is no easy task. It certainly isn’t outlandish to conclude, as the Court did, that free speech rights must prevail over hard-to-document fears that corporate wealth will distort public discourse or corrupt politicians.”

Then again, they do speak of the “Roberts Court’s broader agenda of deregulating campaign finance” reforms.  On that score, they maintain that by “reshaping the architecture of money, influence, and political organization, the Roberts Court is transforming how America conducts — and funds — politics.” In an endnote (p. 342, n. 64) they state: “While we do not purport to identify specific instances in which electoral outcomes shifted because of trends triggered by Citizens United, it seems to us highly likely that this has occurred in at least some races.”

While the authors freely offer the views of the “many critics of Citizens United,” they also concede that “Citizens United was a hard case because the Court faced a choice among evils.” With welcome objectivity and nuance, they add: “it’s extremely hard to determine whether any given campaign finance rule has a big enough impact to survive judicial scrutiny.  Judges have long implemented the First Amendment by requiring — among other things — that  restrictions on speech demonstrably achieve a legitimate goal. The causes of political corruption in America,” they stress, “and the reasons why politicians act the way they do . . . are many and complex.  Money in politics is only part of that story . . . .”

On the one hand, T&M understand how the Roberts Court’s narrow definition of corruption might be viewed as necessary in order to foster a “workable” body of First Amendment law sensitive to the concerns of free speech. On the other hand, they think that the Citizens United Court might have resorted to a “more modest” course of action that would “have left more room for politicians to use campaign finance laws, carefully reviewed by courts, as one tool among many in their efforts to restore public confidence in government integrity.” In other words, they tread cautiously in this ideological minefield.

So what should reformers do? In an endnote, Professor Tribe discloses that he “assisted Representative Adam Schiff of California in drafting a proposed [constitutional] amendment that was introduced in the 112th Congress.” That said, no defense of such radical constitutional surgery is offered in the book. In fact, the authors skip quickly past calls for constitutional amendments. Instead, they counsel that “critics of Citizens United would be well served to move past issues like corporate personhood and money’s status as speech. Instead, they might aim to ensure greater transparency in our brave new world of Super PACs and 501(c) organizations.” {See DISCLOSE Act item below}

If there were ever to be a national forum on the First Amendment and campaign finance reform, the organizers would be wise to invite Messrs. Tribe and Matz, if only to add some light in an otherwise overheated universe.

Note: Since Uncertain Justice was completed in “early 2014,” the Court’s April 2014 ruling in McCutcheon v. FEC (2014) is not discussed.

 Sex, Lies & Video Games Read More

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SCOTUSblog’s Sisyphean Stone

UnknownMore troubling news for SCOTUSblog:

“This was a morning of ironies.  At 9:30 a.m., six members of the blog staff were live-blogging the Supreme Court’s orders, followed by opinions at 10 a.m.  There were 10,000 readers.  The Standing Committee of Correspondents chose that time to release its ruling denying our appeal of its revocation of our press credential.  We learned about it from Twitter.”

“Today, it settled on the fact that practicing lawyers publish and write for the blog.  The Committee takes the view that the blog is not editorially independent from my law firm or from other lawyers who write for the blog.  As a consequence, the Committee found, the blog violates two independent requirements under the Committee’s Rules: any credentialed publication must be editorially independent from an organization that (i) “lobbies the federal government”; or (ii) ‘is not principally a general news organization.'”

“Notably, the Committee finds that no editorial policy can establish editorial independence.  The publication’s own rules cannot overcome the taint created by its personnel.  So the Committee recognizes our rules forbidding any staff member from being involved in the coverage of any case in which the law firm is involved.  But because the firm and the publication are not “separate” in terms of who works for each, the former has the capacity to “influenc[e] editorial content.”  The Committee explains that it would reconsider its decision only if the blog were “to separate itself from Goldstein & Russell and any other lawyer or law firm who is arguing before the Supreme Court” (emphasis added) — Tom Goldstein

Bottom line: “The next step is for us to appeal the Committee’s decision to the Senate Rules Committee.  We do not know how long that will take.” (see link above for full statement)

Disclosure: I am the book editor for SCOTUSblog.  I have not, however, discussed this post or any other with anyone from SCOTUSblog.

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Supreme Court Gives Patent Law New Bite (Definiteness)

I want to thank Danielle Citron and the other folks at Concurring Opinions for inviting me to blog.  As Danielle mentioned in her introduction, I am a law professor at the University of Colorado Law School focused on technology and law.  (More info about me is here: http://harrysurden.com; Twitter: @Harry Surden).

Patent Law’s Definiteness Requirement Has New Bite

The Supreme Court may have shaken up patent law quite a bit with its recent opinion in the Nautilus v. Biosig case (June 2, 2014).

At issue was patent law’s “definiteness” requirement, which is related to patent boundaries. As I (and others) have argued, uncertainty about patent boundaries (due to vague, broad and ambiguous claim language), and lack of notice as to the bounds of patent rights, is a major problem in patent law.

I will briefly explain patent law’s definiteness requirement, and then how the Supreme Court’s new definiteness standard may prove to be a significant change in patent law. In short – many patent claims – particularly those with vague or ambiguous language – may now be vulnerable to invalidity attacks following the Supreme Court’s new standard.

Patent Claims: Words Describing Inventions

In order to understand “definiteness”, it’s important to start with some patent law basics.  Patent law gives the patent holder exclusive rights over inventions – the right to prevent others from making, selling, or using a patented invention.  How do we know what inventions are covered by a particular patent?  They are described in the patent claims. 

Notably, patent claims describe the inventions that they cover using (primarily) words.

For instance, in the Supreme Court case at issue, the patent holder – Biosig – patented an invention – a heart-rate monitor.  Their patent used the following claim language to delineate their invention :

I claim a heart rate monitor for use in association with exercise apparatus comprising…

live electrode

and a first common electrode mounted on said first half

 In spaced relationship with each other…”

Screen Shot 2014-06-06 at 9.32.30 AM

So basically, the invention claimed was the kind of heart rate monitor that you might find on a treadmill.   The portion of the claim above described one part of the overall invention – two electrodes separated by some amount of space.  Presumably the exercising person holds on to these electrodes as she exercises, and the device reads the heart rate.

( Note: only a small part of the patent claim is shown – the actual claim is much longer)

Patent Infringement: Comparing Words to Physical Products

So what is the relationship between the words of a patent claim and patent infringement?

In a typical patent infringement lawsuit, the patent holder alleges that the defendant is making or selling some product or process (here a product) that is covered by the language of a patent claim (the “accused product”).  To determine literal patent infringement, we compare the words of the patent claim to the defendant’s product, to see if the defendant’s product corresponds to what is delineated in the plaintiff’s patent claims.

For instance, in this case, Biosig alleged that Nautilus was selling a competing, infringing heart-rate monitor.  Literal patent infringement would be determined by comparing the words of Biosig’s patent claim (e.g. “a heart rate monitor with a live electrode…”) to a physical object –  the competing heart-rate monitor product that Nautilus was selling (e.g. does Nautilus’ heart rate monitor have a part that can be considered a “live electrode”)?

Literal patent infringement is determined by systematically marching through each element (or described part) in Biosig’s patent claim, and comparing it to Nautilus’s competing product. If Nautilus’ competing product has every one of the “elements” (or parts) listed in Biosig’s patent claim, then Nautilus’s product would literally infringe Biosig’s patent claim.

If patent infringement is found, a patent holder can receive damages or in some cases, use the power of the court  to prevent the competitor from selling the product through an injunction.

Patent Claims – A Delicate Balance with Words

Writing patent claims involves a delicate balance.  On the one hand, a patent claim must be written in broad enough language that such a patent claim will cover competitors’ future products.

Why?  Well, imagine that Biosig had written their patent claim narrowly.  This would mean that in place of the broad language actually used (e.g. “electrodes in a spaced relationship”), Biosig had instead described the particular characteristics of the heart-rate monitor product that Biosig sold.  For instance, if Biosig’s heart-rate monitor product had two electrodes that were located exactly 4 inches apart, Biosig could have written their patent claim with language saying, “We claim a heart rate monitor with two electrodes exactly 4 inches apart” rather than the general language they actually used, the two electrodes separated by a “spaced relationship”

However, had Biosig written such a narrow patent, it might not be commercially valuable.  Competing makers of heart rate monitors such as Nautilus could easily change their products to “invent around” the claim so as not to infringe. A competitor might be able to avoid literally infringing by creating a heart-rate monitor with electrodes that were 8 inches apart.  For literal infringement purposes, a device with electrodes 8 inches apart would not literally infringe a patent that claims electrodes “exactly 4 inches apart.”

From a patent holder’s perspective, it is not ideal to write a patent claim too narrowly, because for a patent to be valuable, it has to be broad enough to cover the future products of your competitors in such a way that they can’t easily “invent around” and avoid infringement.  A patent claim is only as valuable (trolls aside) as the products or processes that fall under the patent claim words.  If you have a patent, but its claims do not cover any actual products or processes in the world because it is written too narrowly, it will not be commercially valuable.

Thus, general or abstract words (like “spaced relationship”) are often beneficial for patent holders, because they are often linguistically flexible enough to cover more variations of competitors’ future products.

Patent Uncertainty – Bad for Competitors (and the Public)

By contrast, general, broad, or abstract claim words are often not good for competitors (or the public generally).  Patent claims delineate the boundaries or “metes-and-bounds” of patent legal rights  Other firms would like to know where their competitors’ patent rights begin and end.  This is so that they can estimate their risk of patent liability, know when to license, and in some cases, make products that avoid infringing their competitors’ patents.

However, when patent claim words are abstract, or highly uncertain, or have multiple plausible interpretations, firms cannot easily determine where their competitor’s patent rights end, and where they have the freedom to operate.  This can create a zone of uncertainty around research and development generally in certain areas of invention, perhaps reducing overall inventive activity for the public.

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Errata in Supreme Court Opinions

Today I read with interest Adam Liptak’s article in The New York Times about the editing of Supreme Court opinions after they are released.  I was surprised to learn that some of these edits are substantive and that there is no simple way of assessing what changes are made.  Moreover, it appears that the Justices can edit for years after the case comes down (until the official reporter comes out, I guess.)

In the modern age, these practices are ridiculous.  The Court could easily provide a red line or compare version of final opinions on its website.  Likewise, I fail to see why it takes years for the official reporter to be published.  (Can’t the Court issue a PDF version a few months after a given Term or other logical break point?) Finally, the Justices should not be able to revise their opinions after lower courts start quoting from them.

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SCOTUSblog files credentialing appeal to Senate

lyle-denniston

Lyle Denniston

Over at SCOTUSblog a letter has been filed with Laura Lytle of the Senate Press Gallery in connection with the Blog’s appeal of the Standing Committee’s decision not to renew Lyle Denniston’s press credential. In early April, the Senate Press Gallery denied SCOTUSblog’s application for a press pass, and advised that it would refuse to renew the credential it had previously granted Mr. Denniston when it expires this month. The Supreme Court’s longstanding policy is to look to credentials issued by the Senate in connection with its own credentialing.

SCOTUSblog pursued a Senate credential for several years, modifying its blog policies to address the concerns expressed by the Gallery. Last year, SCOTUSblog succeeded – the Senate Press Gallery credentialed Mr. Denniston as a reporter for SCOTUSblog. That credential was then presented to the Supreme Court. The Court, however, declined to recognize the credential, explaining that it would instead review its credentialing policy.  The Court has yet to indicate when that review will conclude.

Before the Senate issued a credential to Mr. Denniston, the Court recognized him based on his work for WBUR radio in Boston. That remains unchanged. Additionally, as an interim measure during the review of its policies, SCOTUSblog requested public seats for the cases that Amy Howe (SCOTUSblog’s editor) was covering. The Court has granted those requests.

According to Tom Goldstein (the publisher of SCOTUSblog), “the Senate Press Gallery’s decision to deny us a credential is important to us.  We wanted the credential in substantial part because we cover Supreme Court-related matters in the Senate.  Most significantly, we do gavel-to-gavel, liveblog coverage of Supreme Court nominations. We also expect to cover hearings related to the Court’s budget.  So those efforts are now more difficult.”

Among other things, the May 14th letter to the Senate states:

As a result of [its] extensive coverage, the blog has built a substantial readership: On the days when the Court is issuing decisions during the middle of the Term (i.e., before periods of the public’s peak interest), it averages nearly sixty thousand unique visits per day, and it has roughly 160,000 Twitter followers. In addition, the blog has over ten thousand subscribers to its RSS feed, along with over five thousand subscribers for its email updates. 

A number of issues are addressed in the letter along with the nature of the Blog’s financial and editorial operations.

(NB: I serve as the Blog’s book editor and contribute to it. I have not, however, been involved in any credentialing matters for the Blog and have likewise not discussed the matter with its publisher, editor, or staff.)

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Woodrow Wilson and Justice McReynolds

98px-President_Woodrow_Wilson_portrait_December_2_1912I’m starting to go through Justice McReynolds’ papers, and one thing that I would like to figure out is how he got on the Court.

The most common story of McReynolds’ appointment goes like this.  He was a jerk as Attorney General, so when a Supreme Court vacancy opened up Woodrow Wilson took that opportunity to get rid of him.  This does not strike me as a plausible explanation.  Even if you took Supreme Court appointments lightly, which I don’t think Wilson did, I doubt that you would hand this plum to someone you could not stand.  What are the other possibilities?

1.  McReynolds, as I mentioned in a prior post, had a fine reputation as a trust buster in 1914.  This may have convinced Wilson that he was a progressive (or progressive enough).  I’m less clear on whether McReynolds was a good Attorney General–I still need to work through that.

2. The vacancy to which McReynolds was appointed was a southern seat (Horace Lurton, a Kentuckian, died).  As a result, the fact that McReynolds was from Tennessee gave him a leg up.

3.  Wilson’s wife died a few weeks before McReynolds was nominated.  Some suggest that (in his grief) Wilson simply was not thinking clearly about the nomination or any public matter at that time.

Anyway, I’m curious to see what the press had to say about the McReynolds nomination.

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Antitrust Law and the Four Horsemen

One of the questions that I’m researching about the Four Horsemen is how they got on the Court.  If they were so reactionary (a questionable assumption), then how did they make it through the nomination and confirmation process?  Part of the answer (for Sutherland and Butler) is that Warren Harding was lucky and got to name four Justices in just two-and-a-half years following a Republican landslide.

With respect to Justices Van Devanter and McReynolds, though, the answer reveals something about how judicial litmus tests work.  Both men were seen as acceptable (and, indeed, desirable) because they took a strong position in favor of enforcing antitrust law.  In the 1910s, a “reactionary” was someone who opposed antitrust enforcement.  But McReynolds was an active prosecutor of trusts before and during his term as Attorney General.  Van Devanter, meanwhile, was part of an en banc circuit decision that ruled against the Tobacco Trust, and newspaper comments at the time indicate that this made him “sound” for President Taft.  In addition, the President may have picked him because he wanted a sure vote against the Tobacco Trust at the Supreme Court, as in those days ruling as a circuit judge did not compel a recusal for a Supreme Court appeal of the same case.  (Chief Justice Taft also came to rely heavily on Van Devanter in the 1920s.)

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Hypothetically Speaking: Justice Breyer’s Dialectical Propensities

220px-StephenBreyerIn July of 1994, Judge Stephen Breyer testified before the Senate Committee on the Judiciary in connection with his nomination to the Supreme Court. In responding to a question posed by Senator Howard Metzenbaum, Judge Breyer could not resist the temptation to respond by way of a hypothetical:

Let’s say—and I will use a hypothetical, I don’t like to use that here, because I know this isn’t a classroom and I know these are serious matters and I don’t like to be professorial, frankly, but I think in this instance, maybe thinking of, say, they turn this wheel around and they charged 8 cents for the electricity, and that might help. They then transmit it across a wire. They then sell it to them- selves, because they are in the retail operation, too. And they sold it, let us say, for 10 cents. So they make it for 8 cents and they sell it to themselves for 10 cents, and the price to the consumer is 10 cents. Now, the plaintiff in this case came along and said, you see, 8 cents is what we have to pay for it, because they sold a little bit to independent retailers, too, and that plaintiff was an independent retailer. And that independent retailer . . . .

In the interest of brevity, I abbreviated my quotation of the Judge’s hypothetical.

As Court watchers well know, the hypothetical (typically long and complicated) is his signature move. What prompted my thoughts on Justice Breyer and his courtroom style were some recent comments (see also here and here) made about Justice Clarence Thomas and his courtroom style. That said, I thought I would share a few examples, albeit shorter ones, of Justice Breyer’s dialectical propensities.

During the course of oral arguments in FCC v. Nextwave Communications, Inc. (2002), a statutory interpretation case, Justice Breyer ventured to make a point by way of a hypothetical:

I learned the second year of law school–and 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,” that there are often implied, not-written exceptions. . . ‘No animals in the park’ doesn’t necessarily apply to a pet oyster . . . . 

Or consider another hypothetical Justice Breyer posed to Professor Randy Barnett, who represented the Respondents in Gonzales v. Raich (2004):

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. … So you’re going to get around all those examples by saying what?

Of course, other examples might have been selected (say, Breyer’s hypotheticals in McCutcheon v. FEC), but that is an assignment for a more extended discussion. For now, it is enough to ask: How have Court watchers responded to the Justice Breyer’s style of questioning? Here are a few random samples of what I turned up in response to that question.

A former Harvard Law School professor, Breyer is the most verbose of the justices. He’s unleashed nearly 35,000 words during oral arguments since January, a transcript review shows. Repeatedly, he insists that lawyers imagine scenarios that are parallel to—or perhaps perpendicular to—the facts at hand. . . . When they work, hypothetical questions can reveal a contradiction or expose a fundamental legal principle. Of course, they don’t always work. — Michael Doyle, March 16, 2007

Breyer is the Court’s most frequent practitioner of the hypothetical question, a conjurer of images that are unusual and hyoccasionally bizarre. Mark Sherman, March 2, 2008

During Supreme Court arguments Wednesday in a case involving claims against high-ranking government officials over post-Sept. 11 detention practices, discussion frequently turned to an unusual hypothetical scenario posed by Justice Stephen Breyer: a lawsuit over a mouse found in a bottle of Coca-Cola. Though Chief Justice John Roberts Jr. at one point called the hypothetical “by its nature particularly absurd,” he and the other justices who adopted it seemed to find it quite instructive. Tony Mauro, December 11, 2008

Justice Breyer . . . occasionally runs the hypothetical too far out, and it becomes as complex as the underlying legal concept he is trying to make intelligible. Lyle Denniston, December 7, 2011

Justice Breyer is notorious for asking long-winded hypotheticals in which he can occasionally get lost, and unfortunately these hypotheticals may waste an advocate’s valuable time and may not be pertinent . . . . Ryan Malphurs, 2013

Justice Breyer offered one hypothetical and a view of the legal implications, then conceded he or his law clerk might have it wrong and would have to review the rules again. Bob Bauer, October 9, 2013

Justice Breyer . . . is the Talmudic scholar of hypotheticals. Art Lien, February 25, 2014

Stephen Breyer’s interminable law professor hypotheticals . . . are about drawing attention to themselves rather than helping the Court work through issues. Scott Lemiux, February 26, 2014