SCOTUS Rorschach Balancing Test: Justice Breyer Asks Whether It Is A Duck Or A Rabbit?

November 6th, 2012

During oral argument in  Smith v. United States (11-8976), Justice Breyer notes that there may be two ways to look at whether the statute of limitations applies and channels Joseph Jastrow’s famous rabbit-duck illusion.

 JUSTICE BREYER: I suspect I agree. If -­ it’s awfully tough to turn this on the presence or absence of particular dates in the indictment, but the — the thing that motivates me — I mean, I can see it’s like a rabbit-duck. You know, is it a rabbit or is it a duck? And — and the — the — the thing that is so rare in the law -­

JUSTICE SCALIA: It’s a jackalope, maybe. never heard of a rabbit-duck. (Laughter.)

MS. HARRINGTON: That’s really a rabbit.

So what is it? A duck? A rabbit? A jackalope?

And yes, I’d much rather read Supreme Court transcripts on election day than look at election predictions and exit polls.