October 2020 – SCOTUS OA

After listening to the oral argument in Torres v. Madrid and the discussion thereof on the Strict Scrutiny podcast, we wondered just how many times Justice Breyer had talked about dogs in Supreme Court oral argument.

Avid Supreme Court watchers won’t be surprised to learn that Justice Breyer is the top dog of dog references for the current Court. We count 43 speech episodes by Justice Breyer featuring dogs.

This is what we found.

Mosley v. United States, 1998 Term

Justice Breyer: Yes, and if it comes down to that, have you found any case, ever, in history, where there was such a person, where in fact he put the gun up… I mean, we found one, almost, in the Sentencing Commission, where a person who took some money with a toy gun to pay his veterinarian and… because he wanted the dog cured, and gave back the money when the dog died, I mean, but that was… that was an unusual case, and I’m not sure it applies. So I take it we’re talking about very unusual cases. You’ve both done research. I will ask both sides the same question. Has any case that sheds any light on that particular question, rather than using these vague words, ever come up?

Reno v. Condon, 1999 Term

Justice Breyer: Isn’t that true of every Federal prohibition on what a State government does? I mean, suppose you sell hot dogs at the State park. Don’t you have to comply with the food and drug laws? I mean, and they may be complicated, and you may have to say what kind of a hot dog and what kind of a stand, and what about… it’s certainly a lot better than the minimum wage, or the… isn’t it? I mean, you have to do a lot less than that. And… in other words, is your argument on this part just going to set aside all Federal regulatory programs that tell States what they can’t do?

Castillo v. United States, 1999 Term

Justice Breyer: It’s not the problem with the dog and the tail that’s worrying me so much as a different problem, which is that this is a statute that you might have said that the whole statute is simply a sentencing factor.

City of Indianapolis v. Edmond, 2000 Term

Justice Breyer: I guess a policeman could walk a dog, a sniffing dog down the street, couldn’t he? I mean, suppose he did that. There are people stopped, I mean, so it doesn’t bother anybody, but he sniffs the dog. I thought probably that was lawful.

***

Justice Breyer: But I would like you to address that particular point. I’m confused. My characterization, not theirs. But from what Mr. Chinn said, I thought that this was a stop the basic purpose of which was to look for drugs; i.e., if the police had known they weren’t going to get… be able to look for drugs, there would have been no stop. From what the Solicitor General said, I thought that my characterization, not hers, that this was a different kind of stop. This was a stop to search for drunk drivers or a stop to search for licenses… unlicensed drivers, and the police would have done it if drugs had had nothing to do with it, and their having done this is like somebody stopping at a red light, and people walk a dog around. Well, there seems to be quite different considerations. So what is this case?

***

Justice Breyer: Now suddenly since the Solicitor General argued, I think there is a new premise reaching in… reaching in. This is not a drug search case. This is a drunk search plus a dog. Now, that’s quite a different thing.

***

Justice Breyer: And because of that issue, I think it’s important to get clear on what it is, and if we’re treating it as a drug case, it’s one thing. Drunk case plus a dog, it’s another. So in your last answer, you accepted the characterization. The second characterization. And I want to be sure what you think about that and why I take it you think it should be the first characterization, not the second.

Lewis v. Lewis & Clark Marine, Inc., 2000 Term

Justice Breyer: As I read it, you’re trying… you seem to be trying to make the tail wag the dog. These early cases say, well, you know, if you’re in Federal court, shipowner, trying to limit your liability, because we’ve had a collision and there are 42,000 plaintiffs and you’ve got to deal with this and just limit it to the vessel, well, as long as you’re there, we’ll try out whether you’re liable at all. We’ll try out exoneration. The only reason we’re doing that… they didn’t do it in England, but the Court says… we say, from time immemorial it was done in every other country, right? So–

***

Justice Breyer: Okay, but if you’re prepared to go that far, then the case turns on whether there is a Federal reason, and the Federal reason you say is exoneration, so I understand that. And then I’m back to the question I had before, which I’m not sure I had a satisfactory answer to totally, that really what this exoneration is is the tail and it follows the dog into the Federal court, and the only reason it’s ever there was, historically in England they did this, what the courts thought were absurd, to force the shipowner to give up his right to exoneration in order to get in Federal court, and our court years ago said that’s silly, no other country does that and we’re not going to do it.

Kyllo v. United States, 2000 Term

Justice Breyer: But a drug sniffing dog you couldn’t? I mean, if you brought the drug sniffing dog up to the window and it has a fit?

Norfolk & Western Railway Company v. Ayers, 2002 Term

Justice Breyer: I think you’re right, and the dog bite cases support you, and the radiation cases support you, and if it’s cut-and-dried, as you say, then you win. But if, when I look at all this stuff again, and I come to the conclusion… if I were to come to the conclusion that it wasn’t cut-and-dried, then I’m much more at sea, and I want you to see why. One was the reason I gave, which is the risk problems, and the other, which is driving that, and I’d just like you to comment on this, is… is my concern that if we begin to compensate people for fear of small changes in risks when the law doesn’t… is open on the point… what will happen in the asbestos cases, and that was their initial point, is that we will… there’s $200 billion at stake, and the fund will run dry. When the people who really get the cancer come into court, the cupboard will be bare, and I think that’s a serious policy problem, and it’s worrying me quite a lot, and that’s why I keep coming back to the open nature of this.

United States v. Flores-Montano, 2003 Term

Justice Breyer: Can you make us, i.e., I’m not saying this pejoratively, but can this Court be required to decide what might be a hypothetical question, it seems to me, the dog barked and therefore they had grounds for thinking their were drugs in the gas tank, and he kicked the gas tank and it was hollow, and no one disputes those facts. But you want to decide… us to decide this case, as does the other side, as if those facts didn’t exist. It sounds to me like a hypothetical question, almost in the direction of an advisory opinion. What would we have decided if those facts didn’t exist? But they do. So how does that work?

***

Justice Breyer: No, all there is, is there happens to be, I think, in the record, undisputed facts that the dog barked and that they kicked the gas tank and it was hollow.

Illinois v. Caballes, 2004 Term

Justice Breyer: –I want to focus you on the question. I think what you’re doing, which is a reasonable thing to do, but it isn’t my approach, look to the English definition of search. I say forget that. Let’s look to the Fourth Amendment because there are a whole range of searches that don’t even fall within the Fourth Amendment in the sense that we don’t need a justification. And I take Place as saying that dog sniffs is one of those, whether it does or doesn’t use the word English search. So I want to know why it is that this dog search is one of the ones that’s a Fourth Amendment search, i.e., one of the ones that requires a justification in terms of what the Fourth Amendment is about, privacy.

***

Justice Breyer: –All right. So… so what you’re saying is… and this must tie back to reasonable expectation of privacy. All right? Because it’s okay for the policeman to do it, and it’s okay for dogs to do it in the bus station, and it’s okay to use a dog not in the bus station with a car if in fact you actually are going to put him under arrest, although here you had probable cause to do so, I take it. And now you have to draw a pretty fine line. But it’s not okay where it’s not the bus station, but it is the car and in fact the dog is doing the sniffing… and there are a lot of dogs around that can sniff… and you did have probable cause but you didn’t say it. And in face of Justice O’Connor’s case which said that… you see. Well, I mean, this is… this is–

DaimlerChrysler Corp. v. Cuno, 2005 Term

Justice Breyer: –dog license… dog license costs $10, but you have to pay 20 if you invest next time in Wisconsin. [Laughter] By the way, we’re not going to do it that way, we’re just going to say you pay half.

Pleasant Grove City v. Summum, 2008 Term

Justice Breyer: Because there are various groups that feel that’s important; the city says yes, it is; and we don’t want things like pull the dog’s tail, or —- [Laughter] –whatever. So — so what’s wrong with that? Where does the First Amendment forbid that? You promote — they want in this corner, promoting in the playground good things that they like and not bad ones. Where does it permit it? What’s the case that says that the Government couldn’t do that?

United States v. Stevens, 2009 Term

Justice Breyer: Why? You say a crush video, my description that I read of it, you would have a strong case. I’m not saying you would win, I don’t have to decide that. But you have a very strong case. So you say to Congress, write a statute that focuses on that. You are worried about dog fighting, write a statute that focuses on that, and moreover, talks about something unlawful in every state. I am not giving Congress advice, though I seem to be. [Laughter] I’m just saying why — why can’t you here write a statute that does not force the courts into the work of interpreting these very vague words to prevent the statute from being held unconstitutional?

Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection, 2009 Term

Justice Breyer: You say “absolutely not”. I thought there was a provision in this law that said they cannot put anything on that strip which destroys your right of enjoyment of the upland right. Now, if they put a noisy hot dog stand that keeps you up at night, doesn’t that violate the statute?

Henderson v. Shinseki, 2010 Term

Justice Breyer: –Yes. Right. The dog ate the court, and the — the — there is a case which says there is no extension of a — of a deadline to file for review of an agency action, no matter how equitable your case. Which is our — which is the Supreme Court case that holds that? I — I am not familiar with it.

Florida v. Jardines, 2012 Term

Justice Breyer: Yes, but I — what I’m curious about, and it’s an unanswered question for me, is we are considering whether the dog sniff is permissible, so I wanted to know what a dog sniff at the front door involved. And at page 96, 97, 98 of the joint appendix, with which you are familiar, it explains that. It isn’t just going up and [indicating;] that’s it. It’s a process called bracketing. They describe it at length. The officer, the dog officer, said he was in a rush that day and it didn’t take more than 5 to 10 minutes. And my question really is whether an ordinary homeowner expects people to walk down the curtilage and, with a big animal, and the animal — they don’t knock. They behave in the page 96, 97, 98 way. I subjectively think, well, that’s pretty unusual behavior, whether it’s a policeman or anybody else. So what do you respond?

***

Justice Breyer: –to protect a person with a dog coming up to the door and going [indicating,] all right? Now, your response to that is what?

***

Justice Breyer: And then the question was, as Justice Alito put it, why? He says, we go back to the 17th century, as far as you want, and there is no law that says there is any kind of expectation in a homeowner that a person won’t walk up to the dog — to the door with a dog on a leash and sniff, which, as he says — which your opponents say is what happened here. And your response to that is?

Comptroller of the Treasury of Maryland v. Wynne, 2014 Term

Justice Breyer: To be specific, you live in California. You have a hot dog stand in Hawaii. All right? It has a $1,000 income. It comes back to California. You pay 13-1/2 California tax. Hawaii wants to charge another 12. So you’re paying 25 percent. Can California say: That’s fine; we give them no credit for the 11 percent they’re paying in Hawaii? So the bottom check that you get is $750, not a 1,000. But if your hot dog stand were in California, the check would not be 750, it would be approximately 900. Okay? Now, is that constitutional or not?

***

Justice Breyer: Here in my hypothetical the basis is identical. It’s called an income tax, okay? And they run it in both States the same, and the problem that I would like you specifically and you are addressing with Justice Kennedy is what California says, open your hot dog stands in California. You go and open them in every other State and any other State, but particularly Hawaii, you will pay $125 more in income tax, not some flat other thing, not property tax, not some other kind of tax, in income tax. Okay. Now, that’s constitutional because?

***

Justice Breyer: When you do business in California and you live somewhere else, your hot dog stand is going to be subject to pretty high property taxes. It’s going to be subject to special use taxes. It’s going to be subject to taxes that they have for one time to finance the schools. It’s going to be subject to da, da, da, da, da. Okay? And so what they are really saying is, well, nobody claims that California can’t do that and Maryland can ignore it for purposes of their income tax. It’s tough to do business in California, according to some. Not to Californians. But nonetheless, this is just one more burden that you have to suffer and that’s because they’re on — you heard the argument. So what’s your response to that.

Rodriguez v. United States, 2014 Term

Justice Breyer: The problem — I have a great idea. Why don’t we say, taking your test, that the stop, you can you can do it, you know, whatever is normal there, but it cannot be prolonged more than the time reasonably required to complete the mission, which happens to be giving a temporary — a traffic ticket. Or we could say it cannot last longer than is necessary to effectuate the purpose of the stop. What an original idea I had. It happens to be language from two cases that we’ve already said. And are you saying anything different? I don’t think so. If so, what? And if not — since this is a case where apparently the lower courts have said it did last longer than was reasonably necessary because the policeman said, that’s why I — I mean, in effect said, according to the judge — Hey, I called the dog after the stop was over, or something like that — we cite those two cases, say those are the tests. Affirm — or reverse, I guess; QED. Goodbye, we say, to all the litigants, and hope that you are happy. Now, when — when — when I hear you say that it sound — what you’ve said sounds — sounds that’s what you think we should do.

***

Justice Breyer: Of course, if it’s in the middle of it, you call the dog and so forth, but you can’t prolong it beyond the time reasonably necessary. Now, I’ve said that several times. I think you may agree with that.

***

Justice Breyer: –Okay. But that’s where — I thought that position that I’ve tried to — let me state it more clearly, I think. It is unlawful to have the dog sniff where the dog sniff unreasonably prolongs the stop, is that — does — is that okay if I write — with the government — if I write those words in an opinion?

***

Justice Breyer: No, I was saying two parts. Part one, traffic stoppers, you can use a dog sniff when you stop, but not once the stop is over, period, unless you have cause or something. And during the stop, that’s part two, you can’t prolong it but for a reason. You have to do it all within a reasonable time, okay? You can’t unreasonably prolong it to get your dog in. See? You tell them those two things. Once you’ve told them the two things, they’ve got it in their heads. When this is over, goodbye dog.

Husky Electronics v. Ritz, 2015 Term

Justice Breyer: We — we treat — we treat in our veterinarian clinic domestic animals, your — domestic animals or your household — domestic animals, your dog — your — your favorite friends or your domestic pets, you see. Domestic pets is meant to say which domestic animals? Domestic animals, dogs, cats, or household pets? Domestic animals seems to cover the whole thing. They’re saying, or it’s like, i.e., household pets.

Cuozzo Speed Technologies v. Lee, 2015 Term

Justice Breyer: And if they never issue a patent, I apply for a patent because I have this thing that instead of putting red cellophane on the speedometer, I put purple cellophane on the speedometer. It signals the presence of a hot dog stand. All right? (Laughter.)

Fry v. Napoleon Community Schools, 2016 Term

Justice Breyer: So would he have to get a service dog if in fact it’s going to cost him $5 million in damages? And they are talking about before filing the complaint. All right? Before filing the complaint, you’re already in negotiation with the board. And you think I’m also entitled to this under this ADA statute, let’s file a complaint and asked for damages. It will be res judicata or something when I win, and then they’ll have to give me the dog. And if that is the theory, then — while it might work in this case, there are thousands of cases where parents don’t have the money to litigate, where some do or some don’t, where boards are in difficult problems, and all these very great difficulties in such cases which are worked out through negotiation won’t be.

***

Justice Breyer: I see that. I see this is what — where — where I am. I want a quick reaction from you, if you can give it. The problem of deciding against you is not necessarily in this case, but in other cases where, in fact, it would be fairly easy by how you write the word “damages” in your complaint to have judges deciding IEPs without the preliminary negotiation and views of the school board, which would seriously undercut and hurt the — this statute, which is designed to get the educational plan. The trouble with deciding it your way is, I think, exactly what Justice Kagan said: Almost anything can be written into an educational plan having to do with the child’s day at school. And, therefore, when there is nothing more to it than a claim that the librarian wrongly kept the dog out of the library — the school librarian, you wouldn’t be able to bring the suit because, after all, you could have written such a thing — don’t keep the dog out of the library — in the plan. So what to do? Now, I’m here thinking in the back of my mind of words that have come up in other cases, like “gravamen” of the complaint or — which we’ve had in many cases involving sovereign immunity or all kinds of things, which Holmes and, you know, Frankfurter talked about. What is the gravamen of the complaint? And were we to say, let us look to the gravamen of the complaint, the heart of the complaint, what it’s really about. If what it’s really about is a significant matter in respect to the IEP, then you do have to exhaust, unless, of course, it’s futile. If it is not, you don’t; and then let the lower courts decide this one.

***

Justice Breyer: Here — here this might also be peripheral. I mean, this is a dog for a child who is not blind so is not subject to the regulations. They have a teacher who is going around, or a person who is acting as a guide within the school, and this is, to that degree, a peripheral matter in respect to the plan, and, perhaps, at least arguably, more like the librarian in the school who — or the person who does beat up somebody or treat them badly, which could be the subject but a pretty minor part of an IEP.

***

Justice Breyer: It’s not necessarily awkward. You — you forgot the words “before filing the complaint.” Damages are something you get when somebody didn’t give you something. But go back in time before they make that decision. At that point, what you want is the dog, not the money. Now if that’s the truth, you have to go to the board. Once the board makes clear they won’t give you the dog, at that time you’re free to sue. You’ve met any exhaustion requirement because it’s futile. They have made clear they won’t. And this suit has been brought after that was done. So I don’t see how this suit is going to ever get back for exhaustion, because the school has made clear they won’t. So say exhaustion replies to future suits before anything happens, but not after the board makes clear exhaustion replies, but the futility exception also applies. Am I right?

Knick v. Township of Scott, Pennsylvania, 2018 Term

Justice Breyer: You don’t have to — the problem — the problem — I mean, you could say what Justice Gorsuch said, couldn’t you? The state says: No, we’re not going to pay you. Ha, because there’s no compensation — there’s no taking. Ha. And we could say that’s a final decision not to take it. We could. I mean, I don’t see any logic. But Williamson didn’t. So I thought: Well, why let the sleeping dog — let it lie? And — and then one thing, however, they have a good point and what do you think of that? Their point is there’s surely no reason for the defendant in the state case, where you can do so, remove it to federal court, and then, once he’s in federal court, they won’t decide it because it wasn’t in state court. You agree that we should — no matter what we do, we should write a sentence which says that’s wrong?

Kahler v. Kansas, 2019 Term

Justice Breyer: You’re not going to get it exactly. I mean, it is a — it is a nightmare trying to figure out exact standards. I agree with that. But my question, which I just hope you would clarify, because it’s — I’m stumbling on it, imagine two defendants. Both defendants, 1 and 2, are certified by whatever board of psychiatrists you want as totally insane. All right? The first defendant shoots and kills Smith. The second defendant shoots and kills Jones. The first defendant thinks that Smith is a dog. The second defendant knows it’s a person but thinks the dog told him to do it. Okay? What’s the difference?

***

Justice Breyer: I — I — I know these are words, you see, I want it looking for something in terms of criminal law or legal purpose or human purpose or whatever that would treat the two — why treat them differently? One answer you’ve given, you said it’s so hard to figure out. I agree it’s hard to get a definition. That’s going to be true in both cases. You say criminal, corporate criminal liability, and regulatory offenses. I agree with you, you’d have to carve out exceptions and that is not easy to do. Okay? I’ve got those points. But I’m looking for something different between the two defendants. The dog, there he is, the dog, he told me to do it. They are both crazy. And why does Kansas say one is guilty, the other is not guilty?

***

Justice Breyer: — that states — and you’re right, particularly Kansas, do, in fact, treat he’s a dog, the dog told me to do it, differently. But my question was why?

***

Justice Breyer: You can, I mean, that was the point of my question, I think. The law has many, many ways of, in different circumstances, trying to separate out individuals for whom the criminal justice system is just not going to work in terms of preventing, et cetera, the crimes. One, the wind blew my arm. Okay? Two, duress, because in a duress case you’re looking to see could the — could the defendant have done otherwise. With insanity you’re close to that. Often it’s a question of could the defendant have done otherwise. And even where not, it is is this individual so different from an ordinary individual that it just doesn’t make sense to apply the law? Now, if some something like that is going on, then my question, if, in fact, he’s the dog, out. Why isn’t it? The dog told me to do it. Now, that’s the fourth time I have asked that. But I would like to know what you think about it.

Torres v. Madrid, 2020 Term

Justice Breyer: Good morning. Suppose that a policeman without warrant wants to search a private person’s house, enters in the middle of the night. Before he can do anything, he doesn’t look for a single thing, no chance to look for or search for anything, a big dog drives him out. Is that a search?

***

Justice Breyer: If they don’t search, it’s not a search because the big dog scared them off. Same harm, I mean, pretty bad harm. I mean —