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Breyer, King of Hypotheticals on the Bench, Ending His Reign

Jan. 26, 2022, 6:23 PM

Deadly tomato children. Poisoned chocolate sauce. Grape-shaped hairbrushes.

These are just some of the odd and sometimes fantastical images conjured up by Stephen Breyer in hypotheticals posed to lawyers arguing before the Supreme Court during 27 years as a justice. He’s retiring, according to a person familiar with the justice’s thinking.

Hypotheticals, the favorite tool of legal academics, came naturally to Breyer, who taught at Harvard Law School for more than two decades.

“The point is to try to focus on a matter that is worrying me,” Breyer said in a 2008 interview with Associated Press. “Sometimes it’s easier to do that with an example.”

Breyer’s long-winded oratory explains in part why he has remained one of the least known justices among the public at large. But inside the court, his hypotheticals attracted outsized attention, particularly among advocates forced to answer the fanciful questions he posed.

Here are some of Breyer’s most memorable hypotheticals since joining the Supreme Court in 1994.

Grape Hairbrush

In a 2000 trademark case over protection from knock offs, Breyer acknowledged that his hypothetical involved “a weird situation.”

“Imagine you made a hair brush in the shape of a grape” Breyer said. He explained that “It’s called the grape hairbrush, and that’s it.”

The attorney tried to counter that without bristles, it wouldn’t be considered a brush.

“It does,” Breyer responded. “I mean, you know, that’s not the point.”

VIDEO: Justice Stephen Breyer’s most surreal hypotheticals, during his nearly three decades on the bench, brought to life through animation.

Tomato Children

Breyer offered one of his most unforgettable hypotheticals roughly a decade into his tenure involving “tomato children” that end up harming Boston. The 2005 case, Gonzales v. Raich, involved California’s medical marijuana law and the federal government’s role in policing drug use.

“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,” Breyer said.

“I can multiply the examples and so can you,” Breyer said. Sadly, he didn’t share any other extreme hypos.

Grandma Loves Robocalls

It was a case about robocalls in 2011 that gave us some insight into Breyer’s family life. The court was considering whether Congress can provide for “statutory damages” even if there doesn’t appear to be a harm to the consumer.

“And anyone who gets such a phone call gets $500 in damages automatically if they sue in court if they receive such a call. The harm was getting the call,” Breyer explained.

“So, my grandmother, who is always complaining no one ever calls her, loved the telephone call. She loved it. Best thing happened to her in a month. Okay? Now, can she sue?”

Mob Monopoly

In 2013, the court heard a case about the federal extortion law known as the Hobbs Act. In trying to find out how broadly the act reaches, he summoned scenes from the “Sopranos.”

“What about the mob goes to a grocer and says, you know, you’re dead or something if you sell Cheerios. And the reason is because they have a monopoly, some other grocer who’s connected has a monopoly. And they threaten him,” Breyer said.

“Now, does that violate” the Hobbs Act?

Poisoned Sauce

Breyer was on a roll in 2013, including in a case about who can sue over false advertising.

He invoked a fictional ice cream seller to ask about whether a supplier has standing to sue the competitor of the firm to which he supplies, “where the alleged liable or slander or whatever it is, is directly about what the supplier supplies.” Breyer said.

“Suppose that Bailey’s sells ice cream sundaes, and the defendant has said the chocolate sauce in Bailey’s ice cream sundaes is poisonous.”

“Now, the chocolate sauce does not compete with the defendant because he’s an ice cream parlor, but, nonetheless, he is directly affected by the statement that he is suing about.”

“He is, therefore, different from the other suppliers who might have supplied Bailey’s with cushions, heat, electricity,” Breyer noted.

After other justices picked up on the hypothetical, asking about other stores that might sell chocolate sauce, Breyer regretted that the hypothetical had taken on a life of its own.

“I’m sort of sorry I used that hypothetical,” he said.

“I am, too, because I’m sick of it,” Justice Antonin Scalia quipped.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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