The colorful questioning of Justice Stephen Breyer

If a long and perhaps wacky hypothetical is posed during oral arguments at the Supreme Court, it’s a safe bet that it is coming from Justice Stephen Breyer.

But Breyer, a former law professor (and JDs know how professors love their hypotheticals), said the technique is particularly useful during arguments.

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

Sometimes the examples involve pigs or other farm animals, while other times it could refer to fictitious “tomato children” or parts of a bicycle. At any rate, it keeps attorneys on their toes.

In one dispute over patent rights, Qanta Computer v. LG Electronics, argued in January, Breyer posed the following:

“Imagine that I want to buy some bicycle pedals, so I go to the bicycle shop,” Breyer said. “These are fabulous pedals. The inventor has licensed somebody to make them, and he sold them to the shop, make and sell them. He sold them to the shop. I go buy the pedals. I put it in my bicycle. I start pedaling down the road. Now, we don’t want 19 patent inspectors chasing me or all of the other companies and there are many doctrines in the law designed to stop that.”

Carter Phillips, the experienced Supreme Court lawyer who got the question recalls: “The last time I was up there arguing, it was easier for him to wrap his mind around bicycle pedals. He kept shifting the focus over to bicycle pedals and I was trying to live with him in that world. I was taking the bicycle pedals and putting them on my Stair Master.”

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