Laughter at the Supreme Court
ROSS, LEE
Laughter at the Supreme Court Yes, the justices tell lawyer jokes. BY LEE ROSS ‘Attempts at humor usually fall fl at.” This concise admonition from the offi cial guide for lawyers arguing...
...And often uses it at his own expense,” says former Thomas clerk and Kansas University professor Stephen McAllister...
...So we could go on...
...Despite his notorious aversion to asking questions during oral arguments, he is often seen actively engaged in side discussions with Justice Breyer, who sits to his right...
...And sometimes they can be seen sharing a hearty albeit muted laugh...
...appears 187 times in offi cial Court transcripts...
...He enjoys his job and takes pleasure in what he does,” says Duffy...
...You make him talk with pebbles in his mouth or what...
...Scalia’s humor tends to come out during the extended questioning of a lawyer...
...Do you think we should trust our incumbent senators and representatives to level the playing fi eld for us...
...Justice Antonin Scalia: “I wish you had said that in your brief because we could have saved ourselves a lot of reading...
...Only one time during the past term did Justice Ruth Bader Ginsburg say anything that produced (Laughter...
...Or: Justice Stephen Breyer: That is not an answer...
...Scalia is not the Court’s only jester...
...Or: Justice David Souter: [D]o you know any people who go around saying, well, you know, I really prefer the Democrats...
...McKenna: Well, the example of Senator Lieberman comes to mind, where he said I really prefer the Democrats and I’m running as an independent...
...A subject that every Supreme Court justice knows as well as a late-night comic will lend itself to wry observations...
...I don’t know of any tax that a State could possibly impose, that no State has imposed...
...Justice Samuel Alito: “Well, as a dissenter in United Haulers, I also don’t think it’s a good distinction...
...That is who he is...
...It is unlikely that any law school moot court prepares lawyers for this kind of barrage: Justice Kennedy: I think the reason you hesitated to answer yes might be inconsistent with your position...
...No lawyer wants to hear a barb pointed at him (or fail to laugh at the jokes of a justice weighing his argument), yet multiple times throughout the term, justices did just that...
...In fact, in the 70 cases heard by the Court during the 2007-08 term, the notation “(Laughter...
...What if some—one candidate is more eloquent than the other one...
...I mean that, that doesn’t happen...
...White: The Libertarians require you to sign a membership application that they oppose the use of force in the resolution of political disputes...
...He’s not trying to perform,” says former Scalia clerk and George Washington University law professor John Duffy...
...Justice Souter: “As a dissenter in Carbone, I naturally do not fi nd that the worst answer you could give...
...I would appreciate an answer to the question...
...The reason for all of that laughter...
...He knows that in order to engage people and to be understood sometimes humor makes the point clearly...
...Are there any psychiatric studies that show how accurate psychiatric studies are...
...Yes, the justices of the Supreme Court tell lawyer jokes...
...Clement particularly cites Justice Breyer’s use of humorous or even fantastical hypothetical examples to make his point, though sometimes Breyer himself loses track of where he’s going: You’re saying that this is unreasonable, and that really is my question because I’d like you to assume two things with me, which you probably don’t agree with, and I may not agree with them, either...
...It would be folly to suggest that Scalia is not serious about his work...
...Or: Justice Souter: How about “yes” or “no...
...Mr...
...It’s just that humor is a part of his being, and it clearly comes across in the courtroom...
...Chief Justice John Roberts: Libertarians have a lot more rules than the other parties...
...The unheralded role of the oral advocate is to play straight man for the justice,” observes recently departed Solicitor General Paul Clement, who has argued 49 cases before the court...
...Clement, who also clerked for Scalia, says that when “you interact with Justice Scalia in any format—as a clerk, at a cocktail party, or speaking extemporaneously to student groups— he’s somebody who has a good sense of humor and can tell a good joke...
...Stewart: The government could not have been better represented, Your Honor...
...Justice Scalia: “Cannot communicate coherently...
...This guidance, however, does not extend to the nine justices, who quite liberally inject levity from the bench...
...There is no question that Scalia outshines the rest in courtroom jocularity...
...He says a lawyer can’t go wrong by keeping humor out of the oral argument and advises against it for any lawyer making his or her fi rst appearance before the Court...
...But it does seem that Justice John Paul Stevens had his fi nal question planned for the end of an argument that included considerable discussion of a decision the Court made in 1990...
...A frequent target is the legal profession...
...I sometimes—I sometimes think that the lawyers cannot communicate coherently...
...I’m a Republican myself...
...This concise admonition from the offi cial guide for lawyers arguing before the Supreme Court makes clear that jokes are not the prescribed oratorical device for winning cases...
...It is fair to say that the justices probably don’t enter the courtroom with the express purpose of cracking jokes...
...It is the kind of laugh that roars across the room...
...While it may be diffi cult to predict the timing of his humor, there are certain issues sure to draw his ire in a way that only he can express...
...Often the justices tell “jokes” that few outside the courtroom can appreciate: inside baseball variety observations that make for comic relief for a very select audience...
...I don’t think Congress had the slightest idea...
...I learned from him that there is power in the way you convey thoughts...
...The justices are not using the oral arguments as auditions for a guest appearance on David Letterman...
...Justice Souter: There’s always one...
...Justice Anthony Kennedy: “There are all kinds of nuts who could get 90 percent on the bar exam...
...It’s [a part of] life and he wants to enjoy life...
...That’s extraordinary...
...Justice Clarence Thomas said nothing humorous during the term because he said nothing at all during the time...
...Their humor is generally dry and appropriate for the high-intensity atmosphere of the nation’s highest court...
...Those who know Thomas say his personality shines through when he is out of the public eye...
...He has a rather rich sense of humor...
...He has a remarkably deep, almost belly laugh...
...Several times this term the Court heard cases involving politics...
...She fi rmly maintains a no-nonsense approach to asking questions...
...Roberts was the government lawyer who argued and lost that case 18 years ago...
...Chief Justice Roberts: It is hard to understand how they could have lost the case...
...other justices toss out their own droll perspectives on certain matters...
...Justice Stevens: One last question: We disagreed on parts of the Irwin opinion, but I take it you would agree with me that the government was particularly well represented in that case, wouldn’t you...
...And: Well, I’m not totally certain what I’m talking about either...
...That last is a rare instance of a lawyer, contrary to the Court’s strong suggestion, using humor to support a point—generally only when a lawyer is engaged by a justice who opens the door for a witty response...
Vol. 13 • June 2008 • No. 41
