I don't think the transcript will support Marci's take on Justice Breyer. He
was clearly making fun of somebody. It appears from the beginning that
Hastings was the target. But if if the fun-making is ambiguous, it is clarified
by the end of the exchange, when he says to Michael, "I tend to sympathize with
your view that it's so hard to believe that they really hold it." The
antecedent of "it" is "this policy."
Don't take my word or Marci's for it; read the transcipt for yourself. The
exchange starts at the bottom of page 61 and runs to the top of 63. Here's the
link.
http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-1371.pdf
Breyer's problem was not that he thought the all-comers policy made any sense,
but that it was so unclear what the policy was that maybe they should DIG the
case.
Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109-1215
734-647-9713
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