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By Sindhu Sundar
Over the past two decades, Justice Stephen Breyer has earned a reputation on the bench as the master of the hypothetical. And he rarely disappoints.
In a landmark case this year over the constitutionality of banning offensive-trademark registrations, he posed this scenario: Could the government block trademarks that disparage competitors?“Do you believe that they can stop trademarks from saying — this is the trademark you can’t use — Joe Jones is a jerk?” he asked.While such what-ifs may be a signature of Justice Breyer’s, they also suggest an openness during oral arguments that not every justice shares. He recently sat down with Law360 to discuss the role these arguments play in his decision-making and to shed some light on how the Supreme Court works behind closed doors.
For Justice Breyer, oral arguments influence his thinking about a case almost half of the time. Ten to 15 percent of the time, they even change his mind on the outcome, he said.“You begin to formulate a view [of the case] when you read the briefs, even when you read the first question, then you keep changing your mind,” he said. “You’re open to new arguments. By the time you come to oral arguments, you understand the case pretty well. You have a point of view, but you’re still open to the other side.”
The former Harvard Law School professor favors thoughtful, sometimes discursive lines of questioning as opposed to rapid-fire interrogation in oral arguments. An analysis of transcripts by Law360 found that Justice Breyer spoke more — and more frequently — than any other justice over the court’s 2016 term.That surprised Justice Breyer, who was quick to point out that it may be due to his interrogation style.“Well, I tend to have longer questions, that doesn’t mean I intervened the most,” he told Law360. “Because I usually just have two or three questions, but usually they’re on a point that’s bothering me. So I have to explain what the point is, if the lawyer won’t see it.”
Law360 subscribers can read the full interview with Supreme Court Justice Stephen Breyer.
Read the 1st installment of Law360's exclusive interview with Justice Breyer.
Law360 subscribers can also read Law360's exclusive interviews with Supreme Court Justices Ruth Bader Ginsburg Part 1 and Part 2, Sonia Sotomayor Part 1 and Part 2 and John Paul Stevens Part 1 and Part 2.