Many of Justice Stephen Breyer’s biggest fans are happy to see him go following last week’s announcement that he will be retiring from the Supreme Court. They’re relieved that he’s ceding his seat while Democrats can fill it. And I’m with them. (I clerked for Justice Ruth Bader Ginsburg, who held on too long.) But there’s no question that the court will be bleaker without Breyer. He was the funniest justice—an accidental court jester, beloved for the inane, insane, and occasionally incoherent questions he’d ask at oral argument. There were many such moments, but with his swansong imminent, it’s worth highlighting some of his classics.
In a case about the federal government’s authority to regulate marijuana, for instance, Justice Breyer asked a lawyer about hypothetical mutant “tomato children” attacking Boston. Or consider Breyer’s questioning in a 2008 case about a strip search of a middle school girl. In the midst of a rambling speech, he pronounced that when he was a kid “people did sometimes put things in my underwear. Or not my underwear. Whatever. Whatever. I was the one who did it? I don’t know.”
As a clerk, I got a front-row seat to the ways Breyer’s questions went wrong. In the run up to Massachusetts v. EPA (a key 2007 case about climate change), I was in Breyer’s chambers, working with one of his clerks. Breyer kept popping out of his office, testing out questions he could ask at oral argument. And he settled on an absolute banger of a question—a question that would change everything. (And by “everything,” I mean “nothing,” since the questions asked at oral argument nearly never make a difference. But trust me, as questions go, this one slapped.)
At oral argument, Breyer seized the stage and said: “Suppose there a car is coming down the street and it sprays out Agent Orange. And I come into the Court and I say, you know, I think that Agent Orange is going to kill me with cancer. And the reply is, well, we have some scientists here who say your chance of dying of cancer from Agent Orange is only one in 30. Maybe one in 50. Maybe one in a thousand. Maybe one in 10,000. And therefore, you have no standing to require the EPA to regulate this pollutant, Agent Orange, which is in a green cloud all over the city.”
That is not a good question. To start, why are the clouds green? Wouldn’t they be … orange? (Actually, no. I checked. Agent Orange is named for the color on the can it came in; the gas itself was colorless.) But also, this was not the banger of a question Breyer had planned, and the lawyer quicky blew past it.
A few days later, the Ginsburg clerks took Breyer out to lunch, and I asked him, “What happened to that banger of a question you were going to ask?”
“I almost asked it,” Breyer said. “But I thought of a new question just as I started talking, so I asked that one instead, even though I know that never works out.”
This was a man in touch with his faults. And I was slightly impertinent, so I pressed: “What’s the worst question you ever asked?”
And folks, he did not hesitate. He knew.
“One time, Justice Scalia and I were having our standard argument,” Breyer started, “about whether you just look to the text of the statute or take account of its purpose too. And I wanted to reference that ‘no vehicles in the park’ example.”
He was talking about a hypothetical made famous by two philosophers of law—H.L.A. Hart and Lon Fuller, which goes like this: Suppose there is a rule that says, “No vehicles in the park.” There are clear-cut cases; you can’t drive your Toyota in. But what if Wile E. Coyote wants to chase the Road Runner on his rocket-powered roller skates? Or a group of veterans wants to install a war monument, which incorporates a fully functional jeep?
That’s a good start for a question about statutory interpretation. There was just one problem. During questioning in a 2002 case involving the interpretation of some very direct text, Breyer couldn’t remember the rule that Hart and Fuller made famous. So, he made one up. And that led to one of the greatest exchanges in the history of the Supreme Court:
Breyer: 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. ‘All animals in the park.’ ‘No animals in the park’ doesn’t necessarily apply to a pet oyster, okay, and so—
Scalia: Well, it’s not an animal.
Breyer: Thank you. An oyster in my course in biology is an animal, all right. Maybe in yours it was a rock, or a vegetable or a mineral. But regardless, you see my point …
I doubt that Justice Scalia saw his point. For the record, though, I would absolutely enroll in Breyer on Biology. Or take his pet oyster to the park.
But if that was one of the all-time great back-and-forths in Supreme Court history, it was not Breyer’s greatest question. That came the day before Massachusetts v. EPA, in a case about patent law. The case revolved around the principle that you can’t patent an obvious invention. But what makes an invention obvious?
Breyer had thoughts: “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.”
That does sound like a problem.
But don’t worry! Breyer’s is on it. “So I think of the brainstorm of putting it on the upper hinge, okay?”
But wait—did Breyer patent that brainstorm?
He thought better of it: “Now I just think that ‘how could I get a patent for that’ and that—now that’s very naive, that’s very naive. But the point is, I don’t see what we’re talking about …”
This was, without doubt, Breyer’s greatest question. I mean, it had racoons. And self-awareness. And it painted a picture of Breyer tooling around his house with tools. What more could you want from a Supreme Court Justice?
After Breyer announced his retirement, my colleague, Leah Litman, recalled Breyer regaling clerks with stories about his embarrassing moments at oral argument. He knew that he was goofy, and he wasn’t afraid to laugh at himself, or admit that he didn’t always get things right. Until Sonia Sotomayor joined the court, he was the least self-important Supreme Court justice. (He was also one of its very best. Check out his dissent in Parents Involved if you want to see tip-top Breyer.)
The court will gain in other important ways when President Biden appoints and the Senate confirms his replacement, but it’s unlikely there will ever be another court jester in the Breyer mold. His antics added entertainment value, but crucially they did not compromise the work of the court. As I said before, oral arguments nearly never matter. The cases that come to the court are well-briefed, and they’ve been thoroughly vetted by 36 clerks and nine Justices before the circus even starts.
Oral argument is a public performance—the court’s way of showing it takes the cases seriously. But for Breyer, it was Muppet madness—pure improv—full of tomato children, stuff stuck in his underpants, and garage-eating racoons.
He had a great run. I’m sad to see the show shut down.