Don’t Get Thrown In Justice Breyer’s Patch #1: “Tell Me If I’m Wrong”

January 16th, 2013

Justice Breyer is renowned for his long-winded hypothetical questions that seem to meander aimlessly in the pursuit of who knows watch–but this is not so. After studying way too many oral arguments, certain trends and patterns emerge from Justice Breyer’s hypos. They are indeed traps. I call them Justice Breyer’s Patch.

Here is the first installment: “Tell me if I’m wrong.”

Very often Justice Breyer will play stupid (he’s not) and ask the advocate to tell him that he is wrong about something. Usually, it is something to the effect of, “I could not find a single case that supports X” Or, “could you find anything in the statute that said X?” Breyer follows this confusion by saying something to the effect of, “Please tell me I’m wrong.” (Often Justice Scalia will seize this moment to take a shot at SGB). By this time, the advocate knows, or should know, that Breyer is not wrong. There is no case or statute that answers his question. That’s why Breyer asks it. Often the advocate will try to hedge the question, and Breyer will answer it for him, and say something like, “Well I looked and I couldn’t find anything.” Sometimes he’ll say, “My clerks searched, and they were unable to find anything!” At this point, the advocate has been thrown, head-first, into the Breyer patch.

This trap Justice Breyer set for Paul Clement during the Medicaid arguments in NFIB was lethal.

Breyer asked, “So I want to know where this idea came from that should State X say I don’t want the new money, that the Secretary would or could cut off the old money?”

Clement replied,  “Now, in light of that separation by Congress itself of the newly eligible individuals from the rest of the program, it’s very hard to understand Congress’s decision to say, look, if you don’t want to cover these newly eligible individuals, you don’t just not get the new money, you don’t get any of the money under the –”

Breyer was waiting for just that question, and pounced. “Where does it say that?”

In one of the few occasions where Clement seemed surprised by the question, “It says it at.” Clement sutters, perhaps realizing he did not have the answer to that question–or did not want to give it.  “well, it—where does it say what, Justice Breyer?” This was the only time during the entire argument that Clement asked a Justice to repeat a question–and he handled some very obtuse questions.

JUSTICE BREYER: What you just said. You said Congress said, if you don’t take the new money to cover the new individuals, you don’t get any of the old money that covers the old individuals. That’s what I heard you say.

MR. CLEMENT: Right. And then —

JUSTICE BREYER: And where does it say that?

After Clement offered several citations to his briefs. You can hear Justice Breyer coyly flipping through the pages of the “blue brief,” knowing full well that the answer was not there.

JUSTICE BREYER: I want the part about the funding cutoff.

MR. CLEMENT: Right. And there, Justice Breyer —

Interrupting him almost immediately, Justice Breyer interjected “And that cite section is what?”

Clement answered, “I don’t have that with me –”

Again interrupting Clement–he wasn’t really interested in the answer–Justice Breyer breamed, “Well, I have it in front of me.”

Clement mused, “Great. Perfect. Thank you.”

JUSTICE BREYER: And I’ll tell you what I have, what I have in front of me, what it says.
JUSTICE BREYER: And it’s been in the statute since 1965.
MR. CLEMENT: Exactly.
JUSTICE BREYER: And the cite I have is 42 U.S.C. Section 1396(c). So are we talking about the same thing?

Clement knew that was the exact statute at issue. He mentioned it once in his brief in a footnote.

MR. CLEMENT: I — if that’s the — if that is the provision that gives the Secretary among other things  the authority to cut off participation in the program, yes.

Breyer spoke over Clement, eager to make his point, and began, “Yes. Okay. And here’s what it says at the end.”

JUSTICE BREYER: It says, “The Secretary shall notify the State agency” — this is if they don’t comply — “that further payments will not be made to the State, or in his discretion, that payments will be limited to categories under or parts of the State plan not affected by such failure, which it repeats until the Secretary is satisfied that he shall limit payments to categories under or parts of the State plan not affected by such failure.”

So reading that in your favor, I read that to say it’s up to the Secretary whether, should a State 2 refuse to fund the new people, the Secretary will cut 3 off funding for the new people, as it’s obvious the 4 State doesn’t want it, and whether the Secretary can go 5 further. I also should think — I could not find one 6 case where the Secretary ever did go further, but I also 7 would think that the Secretary could not go further 8 where going further would be an unreasonable thing to 9 do — since government action is governed by the 10 Administrative Procedure Act, since it’s governed by the 11 general principle, it must always be reasonable. 12 So I want to know where this idea came from 13 that should State X say I don’t want the new money, that 14 the Secretary would or could cut off the old money?

Clement countered, “what’s coercive is not the absolute guarnatee  that the Secretary could cut off every penny, but the fact that she could.” This very discretion is what made the law coercive. But this discretion had been on the books since 1965. Thus, Roberts, joined by Breyer and Kagan, held that it was constitutional as applied to the “old” medicaid, but unconstitutional as applied to the “new” medicaid for states that decided to opt out. Boom.

Breyer jumped right in. “All right. Now, let me relieve you of that concern.” “And should a Secretary cut off more money than the Secretary could show was justified by being causally related to the States’ refusal to take the new money, you could march into court with your clients and say, Judge, the Secretary here is acting unreasonably.”

Breyer quipped, “Now, does that relieve you of your fear?”

MR. CLEMENT: It doesn’t for this reason, Justice —

JUSTICE BREYER: I didn’t think it would, but I– (Laughter.)


This colloquy, by the way, helps to explain, in my mind at least, how Breyer joined the Chief’s opinion. I’ll comment later on Kagan’s vote.

A few other examples.

Gabelli v. SEC:

All right. Now, you will tell me that I’m wrong by citing some cases that show I’m wrong. And that’s what I’m asking. I want to be told I’m wrong, sort of.
MR. WALL: And I guess what I want to tell you is there aren’t cases out there one way or the other. There aren’t cases endorsing or declining to adopt the discovery rule in the context of fraud or concealment with civil penalty actions —
JUSTICE SCALIA: You’d expect that – you’d expect there to be some cases in a couple of hundred years.
JUSTICE BREYER: No, I haven’t found one.

Chafin v. Chafin (2012):

JUSTICE BREYER: Am I right or wrong? I want to know if I’m right or wrong.

Kirtsaeng v. Wiley and Sons (2012):

JUSTICE BREYER: Am I right; or, if I am wrong, why did they change it?

DePierre v. United States (2011):

JUSTICE BREYER: It’s my understanding here that — that the problem in this case — tell me if I’m wrong — is because cocaine can become — can be a salt. People sniff it often, I guess, if it’s a salt. And *35 that’s bad. And then there’s a kind that’s worse, that’s freebase or crack, and that isn’t a salt and it isn’t a poodle and it isn’t an acid. It takes a base form, right?

Ortiz v. Jordan (2010):


MR. MIZER: Partly, yes, Your Honor. To the extent the argument is that there needed to be a 50(b) motion

Premo v. Moore (2010):

JUSTICE BREYER: Now I haven’t read this very thoroughly, so — so you — yet — so you tell me if I’m wrong about that.

Andersen v. Carlisle (2009):

JUSTICE BREYER: So is that — is that right, or is it wrong? What’s your insight or guess on that?

Nken v. Flip (later Holder) (2009):

JUSTICE BREYER: Was I right or wrong?

Klein v. Board of Trade of the City of New York

JUSTICE BREYER: Correct me if I’m wrong, but you’re going to be more favorable to this than I expect your opponent. I mean, there is nothing really linguistically or otherwise wrong if you had a statute that said people in the badminton court have to play carefully. And if they hurt somebody on the merry-go-round, they are liable.

Sole v. Wyner:

JUSTICE BREYER: I thought that it — am I wrong about that?

Untied Haulers Assoc. v. Oneida-Herkimer Solid Waste Management Authority

JUSTICE BREYER: Well, I used to teach the subject and I can’t say you’re wrong.

Well the last one didn’t fit the pattern, but it was too good to pass up.

In future research, I’ll dig up some more of the Breyer patches.