“Justice Ginsburg Can Protect Her Own Question”

March 21st, 2018

During oral arguments in NIFLA v. Becerra, Justice Kennedy interrupted an advocate answering a question posed by Justice Ginsburg with a very strange locution:

JUSTICE KENNEDY: Well, may Justice Ginsburg can protect her own question, but I was interested. Her — her question is a hypothetical case.

I could only find nine other instances of “protect her own question” or “protect his own question.” All were from Justice Kennedy.

Byrd v. United States (2018):

JUSTICE KENNEDY: Justice Alito — Justice Alito can protect his own question, but could you answer his question? Would that be all right?

Epic Systems Corporation v. Lewis (2017):

JUSTICE KENNEDY: No, the hypothetical — and the Chief can protect his own question — the hypothetical is the contract says you have to have 50.

McCrory v. Harris (2017):

JUSTICE KENNEDY: Well, but Justice Ginsburg can pursue and protect her own question. What’s sustained is a matter of just luck of the draw and — and it’s true that the State case was first.

Harris v. Arizona Independent Redistrict Commission (2015):

JUSTICE KENNEDY: But Justice Alito can protect his own question, but he’s asking you whether or not a deviation is permissible for protecting communities of interest, protecting municipal lines, whether some slight deviation is permissible.

Fowler v. United States (2015):

JUSTICE KENNEDY: I don’t — I think Justice Alito can protect his own question, but I don’t think you’ve answered it. You’ve put in realistic likelihood. He’s asked you whether or not as a matter of law, assuming that you’re a juror and you read the statute and you were instructed on the words of the statute and you have Justice Alito’s hypothetical, what result?

Hill v. McDonough (2006):

JUSTICE KENNEDY: No. Justice Souter and Justice Ginsburg can protect their own questions.

Lopez v. Monterey County (1998):

JUSTICE KENNEDY: Well, there’s two things there. Justice Souter can certainly protect his own question. The premise of his question was that there was State legislation which applied to more counties than Monterey, and he said, would that be a difference. And then you say, well, this 1979 statute applied only to Monterey. That doesn’t really quite answer his question as a principle of law.

U.S. v. Mezzenatto (1994):

JUSTICE KENNEDY: Justice Souter can protect his own question, but I’m interested in the same point, because frankly it had not occurred to me until I heard the Government’s argument.

U.S. v. Mabus (1991):

JUSTICE KENNEDY: Justice O’Connor can protect her own question, but it seems to me you haven’t answered it.