Breyer, Court Master of the 'What If?'
WASHINGTON – 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."
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.