Supreme Court justices are a staid, serious bunch. They've been educated at the top schools. They're logical, sharp-thinking, highbrow even. Yet hardly an oral argument goes by without one of them offering a hypothetical question to the lawyer at the lectern that is so kooky, so off-the-wall, so convoluted, that it makes jaws drop.
Justice Stephen G. Breyer, who lowers his eyeglasses on his nose when he speaks, is a master of the genre. His hypotheticals are laden with quirky details. In a dispute over whether the Food and Drug Administration can regulate cigarettes as drugs, he began asking about fictitious substances the FDA also might try to control.
"Suppose you got the thermal-glove effect--warm hands--through a pill," he said. "Somebody says, 'Take this pill, it will toughen your skin and bring blood to your hands. . . .' They say, 'Take this pill, it's metabolized, it affects your brain, creates an addiction, and lo and behold, you've got warm hands if it gets cold in the winter. . . .' Do you see what I mean?"
"I think I understand," said Richard Cooper, a lawyer for tobacco companies, ultimately answering that a substance can be regulated only if its manufacturer had been claiming some medical benefit--here, warm hands.
Justice Sandra Day O'Connor, one of the most unyielding questioners, asked Solicitor General Seth Waxman whether the FDA could control horror movies "because so many people go to them to get scared and get the adrenaline pumping?"
"No one has ever seriously suggested that the FDA exercise regulatory jurisdiction over horror movies," Waxman responded.
"Well," interjected Chief Justice William H. Rehnquist, "30 years ago no one would have suggested they exercise jurisdiction over cigarettes."
See? There is a method to the hypothetical madness.
The justices say such questions help them figure out the consequences of a case, how their ruling could affect other situations down the line. Though Rehnquist personally offers more humdrum (some might say, understandable) hypothetical questions, he has little patience for the lawyer who tries to resist the excessive fare that comes from those to the right and left of him.
"That's not this case!" lawyers often will protest, only to be met by Rehnquist's stern look or admonishment to stop stonewalling.
Feisty Justice Antonin Scalia is known for his intricate scenarios that often come with a punch line. In a recent case testing whether police can stop and frisk a suspect simply because he ran at the sight of an officer, Cook County State's Attorney Richard Devine said merely walking away would not get a person in trouble; he must clearly be fleeing.
"Power walking. What about power walking?" Scalia asked. "From an elderly and overweight police officer?"
Scalia is unmatched in his ability to conjure up a scene in a hypothetical question. In a 1998 case involving a sunken ship, he asked, "Suppose I drop a silver dollar down a grate, and I try to bring it up with a piece of gum on a stick and I can't do it, and I shrug my shoulders and walk off because I have not gotten it, and then somebody comes up and lifts up the grate and gets my silver dollar. Is that his silver dollar?"
Justice John Paul Stevens often builds in references to his favorite pursuits or home town of Chicago. In a case involving benefits for descendants of the original residents of Hawaii, he said, "Supposing today we approach an island . . . [and] it's populated by . . . a thousand people who are just all farmers. Could we make an arrangement . . . that you can become a part of the United States and in exchange we give all of you and your descendants a tax exemption, say, or free baseball tickets to the World Series?"
Lawyer Carter Phillips, who has argued 28 cases before the justices, said the only way to handle a dramatic hypothetical from the bench is to "quickly think about how the question might fit your argument." His favorite is one he didn't have to personally field, a Stevens question in a 1988 case testing whether the National Collegiate Athletic Association could be sued for violating due process rights as a "state actor" after it pressured the University of Nevada-Las Vegas to suspend its basketball coach.
"Supposing," Stevens started out, "United Airlines tells O'Hare Airport in Chicago that we won't land here anymore, because we think your airport manager is doing a sloppy job of turning on the lights, or something like that, at night. . . . And O'Hare says, well, we can't operate without United, so we'll fire him. Would United become a state actor because they have enough economic power to insist on that kind of result?"
The lawyer at the lectern was speechless. But Scalia bailed him out, telling him just to say "no."