JUSTICE KENNEDY: Do you think Marbury versus Madison is right?
(Laughter.)
JUSTICE KENNEDY: Particularly as to the interpretation with such exceptions as Congress may make.
MR. VLADECK: So, I will confess, Justice Kennedy, that I may perhaps belong in the school of scholars who thinks that Chief Justice Marshall read both the statute and the Constitution to reach the constitutional questions he wanted to reach.
CHIEF JUSTICE ROBERTS: It says “some benefit,” but you’re – you’re reading it as saying “some benefit,” and the other side is reading it as saying “some benefit,” and you know that – And it makes a difference.
. . . .
JUSTICE KAGAN: Do you favor a standard with bite?
MR. KATYAL: It does have some bite. It does. We’re not trying to –
JUSTICE KAGAN: Would that be “some bite” or “some bite“?
JUSTICE ALITO: I mean, suppose some kids have a lemonade stand or they’re washing cars and they say a glass of lemonade, $1 and then somebody comes up to them and says I’d like to buy that with a credit card. It might happen today. I have – I have never seen anybody younger than me buy anything with cash. But that would be a violation if they put the $1 there on the assumption that everybody is going to pay cash for their lemonade. These are tech savvy kids so they can – could process a credit card purchase if they wanted to?
MR. WU: The statue has no exemption for kids selling lemonade.
JUSTICE BREYER: Right. So what happens then? I mean, you – I grant you have a tough side of this argument. It doesn’t seem very fair.
CHIEF JUSTICE ROBERTS: Your friend on the other side scares me when he says there are 60,000 cases that are going to be added to the Federal docket.
JUSTICE KENNEDY: Don’t tell us we’re not working hard enough.
Justice Breyer: I will also assume that for every chef salad there is a countervailing strawberry shortcake; all right? So — so everything balances out.