The Volokh Conspiracy

Here's what struck me about Justice Breyer's question. He mentioned Judge Rich's metaphor several times (or twice, at least, IIRC) from In re Winslow, 365 F.2d 1017 (C.C.P.A. 1966), about the inventor in his shop with all of the prior art hanging on the walls around him.

In the '80s, Judge Rich retreated from the metaphor, stating that it was an "overly picturesque statement, which has met with unfortunate popularity." Chisum on Patents details this fairly well at Vol. 2, section 5.04[1] [a]-[b].

Perhaps Justice Breyer disagrees with Judge Rich's retreat, but it's worth noting that the "enlightenment" that Justice Breyer said he found in Judge Rich's statement was not shared by Judge Rich during the last 15 years or so of his tenure.

I think Judge Roberts quote below is classic:

CHIEF JUSTICE ROBERTS: Who do you get to be an expert to tell you something's not obvious.
MR. GOLDSTEIN: You get --

CHIEF JUSTICE ROBERTS: I mean, the least insightful person you can find?

(Laughter.)

MR. GOLDSTEIN: Mr. Chief Justice, we got a Ph.D. and somebody who had worked in pedal design for 25 years.

CHIEF JUSTICE ROBERTS: Exactly.

Kate1999, one of my favorite bits in recent years is this exchange in Reno v. Condon -- you have to listen to the tape to hear the frustration in the last 2 questions (from Souter I think, but I'm not sure). Also, if you Google "answer Justice Breyer's question" there's two other recent cases where other justices make that demand, one of whom was Rehnquist.

[Breyer]: Your theory is -- your answer to Justice O'Connor that because that statute that she mentioned tells only States what they can or can't do, it doesn't apply to private people, that for that reason -- it says, State, you can't tax. For that reason, it would likely -- I'm not holding you to this, but I mean, your instant reaction is, that's just as unconstitutional.

GENERAL CONDON: It would raise concerns.

[Breyer]: All right. If it raises concerns -- I take it you're not attacking all of this Court's dormant Commerce Clause jurisprudence, are you?

GENERAL CONDON: No.

[Breyer]: No, fine. If you're not, then I would think -- and think of all those cases. Each one of them, a judge has said to a State, you, as a State, cannot do something.

Now, suppose Congress said exactly what courts have said, and they said it in statutes. In each of those statutes Congress would have said to a State, as a State, you cannot, you cannot run your airport and keep Egypt Air out. You cannot sell natural gas and keep Algerian gas out. I mean, you can't regulate it. You can't regulate your electricity and keep Canadian electricity out. You can't, you can't, you can't.

And if you accept that jurisprudence, but you're also arguing you can't regulate the State as a State, how do you do that? How do I -- how would I possibly find for you on your theory you can't regulate a State as a State, and not set aside the entire dormant Commerce Clause and dozens of statutes, et cetera?

GENERAL CONDON: Well, national security implications may be different, but if I can get back to your hot dog --

[Breyer, dismissively]: It's not national security. I mean, is that the distinction?

GENERAL CONDON: No.

[Breyer]: I'm talking about the entire Commerce Clause jurisprudence.

GENERAL CONDON: I understand.

[Breyer]: The dormant Commerce Clause. I'm talking about any kind of a congressional statute aimed at a State which would say, State, you can't tax this, State, you can't tax that, and I have 10 examples if you want me to give them. State, you cannot keep out Algerian natural gas. State, you cannot -- those don't apply to private people. They apply to States, and they to a State, State, you cannot.

Now, are you asking us to set aside all that?

GENERAL CONDON: Well, I think what's telling here is that when asked of the Solicitor General, is there one case that tells the States under the Commerce Clause, and only the States, you can't do X, Y or Z, you come up with this airport example that Justice Stevens pointed --

[Souter?, angrily]: What about the answer to Justice Breyer's question?

GENERAL CONDON: Well, I'm trying to answer it, but to answer your question, if you look at the Garcia line of cases, and the --

[Souter?]: Well, what about Justice Breyer's questions?

Well, now it's just "never look to your left," because Breyer's seat is now at the very left part of the bench.

The confusion will come a few justices down the road when the rule is "only look to the far left or far right," and advocates start wildly moving their heads from side to side to dodge Justice Breyer's hypos.

Of course, by then, a new type of question to avoid will have emerged.

Hmm, a question that's so long, rambling and repetitive it sounds more like a speech than a question? Obviously he belongs in the U.S. Senate!