U.S. Supreme Court

Breyer, Known for Zany Hypotheticals, Considers Hungry Racoons and Pet Oysters

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Justice Antonin Scalia is known for his sarcasm during oral arguments and Ruth Bader Ginsburg for her attention to details. But no U.S. Supreme Court justice can compete with Justice Stephen G. Breyer’s unusual questions on everything from hungry raccoons to mutated ”tomato children.”

“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 Associated Press reports.

Breyer taught antitrust law at Harvard University, and his penchant for engaging hypotheticals could be a throwback to his professor days when he had to “keep a bunch of 22-to-25-year-olds entertained and interested,” Roy Englert, a Supreme Court lawyer who took his class, told AP.

The story quotes these Breyer hypotheticals:

In a patent dispute over 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. 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?”

In the government’s interest in marijuana growers: “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.”

In a case on statutory construction: ”No animals in the park doesn’t necessarily apply to a pet oyster, OK.”

Another hypothetical on bicycle pedals concerns limits on patent holders’ ability to demand license fees from multiple companies in a manufacturing process: “These are fabulous pedals. The inventor has licensed somebody to make them, and he sold them to the shop. I start pedaling down the road. Now, we don’t want 19 patent inspectors chasing me.”

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