With Breyer’s Exit, a Farewell to Marshmallow Guns and Tomato Children

In 2011, he asked whether he could obtain a patent for discovering a “law of nature” based on the color of people’s pinkies: “If you look at a person’s little finger, and you notice the color, it shows the aspirin, you need a little more,” he said.

At a 2010 argument over whether burglary is a crime of violence, Justice Breyer suggested that it need not always be.

“You’ve heard of cat burglars,” he said. “Well, this gentleman is called the Pussycat Burglar, and the reason is he’s never harmed a soul. He only carries soft pillows as weapons. If he sees a child, he gives them ice cream.”

There was laughter in the courtroom after Justice Breyer described the Pussycat Burglar, which was a common response to his questions, said Jay D. Wexler, a law professor at Boston University and the leading empiricist of humor at the Supreme Court. For years, Professor Wexler said, Justice Breyer trailed only Justice Antonin Scalia in court reporters’ notations of “[laughter]” in transcripts of Supreme Court arguments.

Since Justice Scalia’s death in 2016, Professor Wexler said, Justice Breyer has consistently ranked first. He added, though, that the data did not reveal the volume or nature of the laughter.

In a pioneering 2005 study, Professor Wexler wrote that the simple notation “[laughter]” does not separate “the genuine laughter brought about by truly funny or clever humor and the anxious kind of laughter that arises when one feels nervous or uncomfortable or just plain scared for the nation’s future.”

“Breyer got most of his laughs from his often long, convoluted and inexplicable hypotheticals,” Professor Wexler said on Friday. “Maybe people were laughing with him at some point earlier in his time on the bench, but toward the end I think it was more like, ‘Oh, there goes Breyer with his long, convoluted, inexplicable hypotheticals again.’”