Could those questions be meandering and tangentially related? Sure, but also always asked seemingly in an attempt to gain clarity and help us all wrap our heads around the issues at hand. Or maybe the justice just thought an air-conditioned igloo was a fun idea to think about. Anyway, without further ado, here are some of our favorite hypothetical situations that Justice Breyer posed to the advocates.
Pet Oysters
The Case: FCC v. Nextwave Personal Communications, October 2002
Justice Breyer was nearly a decade into his tenure when he posited this inventive suggestion to Donald B. Verrilli Jr., who argued for the respondents in a case that questioned whether the Federal Communications Commission could revoke the licenses held by a debtor in bankruptcy if they failed to timely pay the FCC for the license.
The associate justice tangled with the wording and legislative history of a particular statute of the Bankruptcy Code that appeared to prohibit the agency's action, and he invoked a lesson from law school that there are "often implied, not-written exceptions" to a text including the word "all."
"All animals in the park."
"No animals in the park doesn't necessarily apply to a pet oyster," Justice Breyer remarked.
Perhaps subconsciously reminding him he was still the newest member of the court, Chief Justice William Rehnquist quickly retorted, "well, it's not an animal," to which the junior justice responded, "thank you."
Jack the Ripper
The case: Brendlin v. California, April 2007
Karen Simeroth was pulled over for an expired vehicle registration, which is where the trouble started for her passenger, Bruce Brendlin. With a warrant out for his arrest and drugs found in the car, Brendlin was arrested.
At trial, he tried to suppress evidence by arguing he had been unreasonably seized in violation of his Fourth Amendment rights. The California Supreme Court ultimately disagreed, finding that the driver of the car is the only one detained during a traffic stop, therefore he was never "seized" in violation of his rights.
Whether or not the passenger of a vehicle is actually "free to go" during a traffic stop was hotly debated when the case reached the high court, leading Justice Breyer to propose a situation involving the 1800s serial killer.
Bicycle Pedals
The Case: Quanta Computer v. LG Electronics, January 2008
Carter G. Phillips was trying to make the case that his client LG Electronics Inc. was still owed royalties on a patented microprocessor chip that was indirectly sold to Quanta Computer Inc., which had integrated the chips into larger components during manufacturing.
Given the seemingly complicated intricacies of patent law, perhaps Justice Breyer was trying to break the problem down into more understandable terms. Or maybe it was a sunny afternoon and he thought of going for a spin when he proposed the hypothetical situation of buying some bicycle pedals.
Raccoons
The Case: KSR International v Teleflex, November 2006
We're not here to judge, but it seems like Justice Breyer might have been dealing some problems at home when he tossed this eccentric example at counsel for Teleflex Inc. in a case about what constitutes an "obvious," and thus unpatentable, invention.
"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?"
Point taken, Justice Breyer. But still, that's not a half-bad idea at all.
Red Sox vs. Yankees
The Case: American Needle v. National Football League
The NFL is a collection of individual teams, but in 1963 they banded together to form the National Football League Properties for the purpose of collectively licensing their intellectual property. American Needle Inc. held a nonexclusive license to produce team merchandise until 2000, when the NFLP granted an exclusive license to Reebok and declined to renew American Needle's.
The antitrust issues before the Supreme Court were weighty. Justice Breyer, a longtime Boston resident, grappled with them using a sport he was more familiar with and took the track of questioning whether competition really exists between, say, the Red Sox and Yankees when it comes to selling team apparel.
Justice Antonin Scalia, no stranger to eccentric questions himself, eventually bailed petitioner's counsel out of answering by wondering out loud, "why am I worrying about this other stuff?"
"I'm not certain this is irrelevant, but given Justice Scalia's persuasive remark, I will withdraw my question," Justice Breyer responded.
We would rather you didn't, Justice Breyer.
--Editing by Brian Baresch.
For a reprint of this article, please contact reprints@law360.com.
