Laughter and pain at the Supreme Court

“There is a thin line that separates laughter and pain”

What do Justice Kagan and Justice Breyer have in common? They are both liberal in general, and fairly pragmatic on constitutional interpretation (although Kagan is much more formalist than Breyer in statutory interpretation). They also share is a tendency for self-deprecating humor. Take this example from oral argument in Ayestas v. Davis:

Justice Breyer: I don’t have it in anything I’ve looked at yet. But I have it somewhere in the back of my mind, which is sometimes wrong. [LAUGHTER]

Or, this exchange from one of the arguments over the fate of the Affordable Healthcare Act in the 2012 Term:

Justice Breyer: I see the point. You can go back to, go back to Justice Kagan. Don’t forget her question.

Justice Kagan: I’ve forgotten my question. [LAUGHTER]

Mr. Carvin: –I — I was facing the same dilemma, Justice Kagan.

Justice Ginsburg: Let me — let me ask a question I asked Mr. Clement. It just seems–

Justice Kagan: See what it means to be the junior justice? [LAUGHTER]

But even when the justices are being ostensibly self-deprecating, such as here, there is often a sharper point beneath the surface of comments—Kagan was simultaneously making a joke at her own expense and at the expense of her senior colleagues, calling attention to their tendency to interrupt her.

Humor as hierarchy

Last week we discussed some of the data on laughter at the Supreme Court in a new empirical study that is now forthcoming in Vanderbilt Law Review, Taking Laughter Seriously at the Supreme Court. We showed that the justices use courtroom humor as part of advocacy—the individual justices are far more likely to make jokes while speaking to the advocates they ultimately vote against.

In addition to using text mining to analyze over 9,000 occurrences of laughter at oral argument since 1955, we also did things the old fashioned way and read about 1,000 instances of judicial humor between 2010 and 2017. What we found, in a nutshell, was that judicial humor at the Supreme Court is often very much about dominance and hierarchy. Breyer and Kagan are actually quite a contrast to the rest of the Court in their repeated willingness to make jokes at their own expense.

Most often, jokes at oral argument take the form of the justices putting the advocates in their place. For instance, each of the following got a laugh: when an advocate said “We don’t disagree” and Justice Scalia responded “You’re supposed to say, yes, sir, good. [LAUGHTER]”; when an advocate posed a rhetorical question and Chief Justice Roberts responded: “I get to ask the questions. You don’t. [LAUGHTER]”; and when an advocate suggested “I don’t think this Court needs to get into…” a particular issue, and the Chief responded “Well, I think you have to get into it since I asked you a question about it. [LAUGHTER]”

Debunking the equalization thesis

Although our reading of transcripts is obviously subjective, the data backs up our impression that the justices use courtroom humor to emphasize the weakness of the advocates.

One of the few prior studies to try to empirically examine humor at the Court claims thatlaughter is primarily used as an equalizing force, a means to foster a de facto egalitarian environment despite the structured hierarchical nature of the Court. We debunk that claim. In fact, the data shows that the justices most often use courtroom humor against an advocate who is losing the argument (see the figure below), and against inexperienced advocates.

“I like people who win”

Just like the President, who “likes people who don’t get captured,” the Supreme Court justices like people who are winning, and like to make fun of advocates who are losing. The figure below shows the net difference in laughter for each justice in terms of whether the advocate ultimately won or lost the case. Almost all of the justices on the Court in the last 20 years tend to use courtroom humor significantly more during the time of the losing advocate (represented by the solid black bars to the left of zero).

Each justice’s tendency to inspire laughter, by difference in advocate win-lose. Original figure in Jacobi & Sag, Taking Laughter Seriously at the Supreme Court (2019)

Apparently, inexperience is a laughing matter

We see a similar pattern for experience.

The justices employ courtroom humor significantly more against inexperienced advocates. Since 1955, advocates making their first appearance before the Court endured the justices’ wit at a rate of .55 episodes per appearance. That figure drops to just over .40 for advocates with less than ten arguments under their belt, and to a mere .19 for the elite lawyers appearing for at least their eleventh time. These differences are just the tip of the iceberg. Further examination shows that there is a significant interaction between advocate experience, laughter, and both individual justice’s votes and overall Court win-loss differentials.

We go into these issues in much more detail in Taking Laughter Seriously at the Supreme Court, but the bottom line is that laughter at the Court is not really about mirth, wit, or levity; the justices use courtroom humor as a tool of advocacy and to reinforce the hierarchy between the winners and loser and the experienced and inexperienced.

Laughter at the Supreme Court—humor or advocacy?

Justice Kennedy once made a witty joke at oral argument concerning physics, saying: “what the statute does is it’s phrased in terms of place, but it really has consequences as to time. Einstein would have loved it: you can’t define space without time. [LAUGHTER]” Another time, when the issue was whether throwing out a fish was destruction of evidence under a corporate law statute, he drolly quipped, “Perhaps Congress should have called this the Sarbanes-Oxley Grouper Act. [LAUGHTER].” And Justice Kagan once showed it was possible to have fun with Latin, commenting “. . . de minimis is not enough, you know. It’s “merely de minimis.” (LAUGHTER.)”

More often, however, the justices are making a very deliberate point in their use of humor, beyond mere witticisms. For instance, in deciding whether a law sanctioning a baker for his refusal to make a wedding cake for a gay couple was contrary to the First Amendment, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, Petitioner’s advocate Kristen Waggoner argued that there is speech value in making a cake, but tried to limit the Court’s concern about the slippery slope of other applications. Justice Kagan asked why there isn’t the same protection for a makeup artist, saying “It’s called an artist. It’s the makeup artist. (Laughter.)” Kagan was posing the serious question of how such claims could be limited by asking the seemingly absurd question of why hairstylists and others should not command the same respect. Justice Breyer made a similar point about the potentially limitless distinctions the Court would be asked to make if it ruled in favor of the baker by resorting to the hyperbole of the Court deciding “42,000 cases, [one for] each kind of vegetable — (Laughter.)” Justice Gorsuch, on the other hand, emphasized that wedding cakes are not made or consumed for the taste but for their symbolism and artistry, by joking that “I have yet to have a . . . wedding cake that I would say tastes great. (Laughter.)” It is unsurprising that Gorsuch voted for much stronger protection for the baker than Kagan’s concurring opinion, joined by Breyer.

The latter set of examples are part of a broad pattern that we identify in a new study, Taking Laughter Seriously at the Supreme Court, forthcoming in Vanderbilt Law Review. We analyze every instance of laughter from 1995 until the 2017 Term—9,000 instances of laughter witnessed at the Court in 6,864 cases, over 63 years—and also qualitatively individually assess all 1,061 episodes occurring between 2010 and 2017. Until now, laughter at the Court has been examined by looking at individual Terms, with the results analyzed in terms of which justice is the funniest. We show that when the justices employ courtroom humor it’s no randomly frivolity and it is usually not even especially funny; rather, laughter is used by the justices as a weapon of advocacy.

We have shown previouslythat the justices strategically use up the time of advocates arguing positions that they ultimately vote against, interrupt those advocates more than their counterparts on the other side, and direct more questions to advocates they favor and more comments to advocates they disfavor. We argue this constitutes a new level of advocacy by the justices on the contemporary Court. In the same vein, we show in our new study that the justices most often use courtroom humor when they will eventually vote against the side the advocate is representing.

Laughing all the way to the conference vote

The figure below shows this laughter differential. Just as we have shown that judicial advocacy is reflected in the “disagreement gap”—that on average the justices have much more to say during oral argument to the party they ultimately vote against—there is also a “laughter gap,” with the justices making more jokes during the time of the advocate they ultimately rule against. The figure below shows the proportion of instances of laughter for each justice of the modern Court, depending on whether the justice ultimately agrees or disagrees with the advocate.

ScotusOA Agree/Disagree Difference in the Use of Courtroom Humor at the Supreme Court, for each justice, per-argument
ScotusOA Agree/Disagree Difference in the Use of Courtroom Humor at the Supreme Court, for each justice, per-argument

In the top half of the figure are justices who are effectively neutral; in the bottom half are justices use courtroom humor in a biased manner, making jokes at the expense of advocates with whom they disagree. Significant differences only occur for justices who lie to the left of zero, i.e. those who make more jokes during the time of advocates with whom they disagree. As we will explore more in future posts, note that all of the more recent justices lie in the bottom half of the table, showing a significant tendency to use laughter as advocacy against their “foes.”

In regression analysis in the article, we show that the effect of the justices who are “biased” in their use of humor significantly outweighs those justices who are “neutral,” even when looking at the whole period of the modern Court, including the less boisterous Burger and Warren Courts.

Most of the jokes at oral argument are at the expense of the advocates, but there are some occasional inter-justice zingers worth noting. When Justice Alito joked “Well, I think what Justice Scalia wants to know is what James Madison thought about videogames. [LAUGHTER]”, he wasn’t just making a joke, he was taking a swipe at Scalia’s favored methodology, originalism. Predictably, there are quite a few joking exchanges between Justice Scalia and Justice Breyer, two justices whose relationship does not appear to particularly harmonious. The following exchange is typical:

Antonin Scalia: I think that Justice Breyer is suggesting that if you treat unconstitutionally a whole lot of people, you can get away with it. [LAUGHTER]

 Stephen G Breyer: Oddly enough, I was not suggesting that. [LAUGHTER]

For the most part, the justices use courtroom humor intentionally and strategically. This is apparent from the content of some of their jokes, and it also apparent in the broader trends in the data. In this post we have focused on how the incidence of judicial humor falls overwhelming on the advocates the individual justices disagree with. In a future post we will address other insights we derived from the data.

How SCOTUS argument transcripts and recordings became widely available

The data that makes our analysis possible is a resource that had to be created and nurtured

All of the empirical analysis at ScotusOA.com is based on the SCOTUS transcripts. We constructed a dataset drawn from the text of every Supreme Court oral argument from 1955 to 2017, based on 1.7 million speech events by justices and advocates. All of this came from Oyez.com. The Supreme Court makes some of these transcripts available but not all—only 15 Terms of the six decades that Oyez provides—and many are not fully identified as to who the speaker is. Oyez developed a program to identify the speaker, went back through the transcripts to 1955, and continues to improve the quality of the transcripts, checking for accuracy. How all of that data became available is an interesting story.

The history of the development of this invaluable resource is an interesting tale of the somewhat obsessive focus one person, Jerry Goldman, on what many thought was a very obtuse idea for a long time, but is now recognized as a great legal resource. It is also the story of the sometimes-odd interaction between the very staid institution of the Supreme Court and quickly changing technology.

Humble beginnings as a set of HyperCards

Before all else, Alderson Reporting Service created transcripts of SCOTUS arguments. These documents found their way to Lexis and Westlaw beginning in about 1980, but they did not identify the individual justices and they were text-only resources. Sometime in the 1980s, Jerry Goldman, then a Professor of Political Science at Northwestern University specializing in law and courts, had the idea—during a Chicago Cubs baseball game—to create a digital Court resource much like baseball cards. Jerry’s idea was that instead of photos of favorite players, their biographical information, and fun sporting trivia, Court nerds could enjoy the same but with justices and Supreme Court cases. Initially, the project was called “The Hitchhiker’s Guide to the Supreme Court.”

The Internet was yet to be, so Jerry set up the cards using HyperCard, a software tool that stacked and interconnected digital cards, with text, images, and other simple concepts. The Hitchhiker’s SC Guide used bitmapped, black-and-white images of the justices and gave information on the cases and the Supreme Court building.

In the early 1990s, Jerry made came to an agreement with the National Archives that allowed him to use their audio recordings of Supreme Court oral arguments, so as long as they would not be used commercially. In 1994, with the help of Joe Germuska, self-designated “Chief Nerd” of Northwestern’s Knight Lab, Jerry created a small prototype of a digital audio workstation that would eventually allow him to make the Supreme Court audio accessible. He received a small grant from NUL, and a subsequent NSF grant in 1995-1996, to build the equipment, and “OYEZ, OYEZ, OYEZ” was created. Another grant in 1996 from the NEH’s Teaching with Technology program allowed Jerry to slowly add more cases, using simple technology that involved cutting and pasting when updating changes to materials. Although the site only had about 100 select cases—all significant constitutional law cases—the server was struggling with the unwieldy technology, so Jerry and Joe decided to create a database of case records and justice records, with the audio on a designated audio server.

The Supreme Court creates its own monster

In 1996, at the same time that Jerry was developing what became Oyez.com, another resource, “May it Please the Court” launched, in which 23 edited versions of the oral arguments, with commentary, were made available for purchase on cassettes. That project gained enormous media attention because the Supreme Court threatened to sue the developer for using the case audio contrary to the arrangement with the National Archives. Ultimately, the Supreme Court gave in and actually changed its policy, permitting broader use of the recordings. The controversy sparked the media’s interest in using audio recordings of oral argument as part of their general news coverage, and that is when the use of Supreme Court oral argument audio really took off.

That appetite for Supreme Court audio hit another high in 2000, in response to Bush v. Gore. The prospect of the Supreme Court deciding a presidential election led to a sudden and enormous demand for a live feed of the two cases (Bush v. Palm Beach County Canvassing Board and Bush v. Gore). Knowing that the Court would be very resistant to a live video or audio feed, Jerry wrote to Chief Justice Rehnquist on November 25 to try to convince him to release the audio the same day as the argument, as a substitute for a live feed. As seen in the fax reproduced below, Rehnquist wrote back, agreeing to release the recordings in these exceptional cases on the same day as the argument. The remaining cases, orders etc. still had to wait until the end of Term for release to the National Archives. Eventually, the Court adopted the end of the week release of all audio, with occasional same-day release for other highly salient arguments, such as the Obamacare arguments and some of the gay marriage cases.

Justice Rehnquist's letter to Jerry Goldman regarding Bush v. Gore oral argument (described in the text)
Justice Rehnquist’s letter to Jerry Goldman regarding Bush v. Gore oral argument

Now, a multi-million user interface

Gradually, with some assistance, Jerry went backwards through the cases, collecting earlier arguments. Leveraging various grants, and collaborating with several scholars, by 2003, the collection extended back to 1980, and by 2014, the Oyez collection was made comprehensive back to October 1955. Today, Oyez also includes not only oral arguments but opinion announcements and speaker-identified transcripts. Jerry says: “The metadata for every case—including our abstracts—remains a work in progress but every case that is in Spaeth is represented in Oyez plus a substantial number of pre-Spaeth (i.e., pre-1953) cases.” Along the way, SCOTUS phased out its reel to reel recordings and went digital in 2004, and Jerry had created a standardized process for making the data available quickly.

Since 2010, Jerry reports that website traffic has increased at approximately 10% to 15% per year. Traffic has been growing particularly strongly in the last two years, going from 3.3 million users (in 6.9 million sessions) in the November 2011 to November 2012 period, to 7.2 million users (in 14.2 million sessions) over the same period in 2017-2018. That is a lot of people who owe a debt to Jerry for pursuing his vision with such determination.

The Supreme Court and technology: A sometimes fraught relationship

Jerry defied traditional academic incentives and has made a lasting contribution as a result. Jerry was advised by colleagues not to build a resource that he would get little credit for and would take away time from his research. Fortunately for those of us who enjoy not only empirical analysis such as that done at ScotusOA, but those who value timely analysis of the arguments on ScotusBlog and other forums, Jerry was stubborn enough to continue.

The history of Oyez.com shows how technological change can bring about institutional change. The Supreme Court has resisted the call for television access for decades, and it is clearly going to continue to do so. But the development of the Internet created the demand for a different type of access, one that was harder to resist. Once it became clear through Jerry’s efforts that online access to Supreme Court transcripts and audio was possible, a new constituency developed around the demand for such access. The Court’s reasons for rejecting televisions in the courtroom did not seem to apply to this new medium. The Court had to either develop new reasons for why it would not make transcripts and audio available, or else had to concede the point. In the end, the Chief chose transparency, but the Court may not have anticipated all of the implications of that move.

In particular, it probably never occurred to the members of the Court that some day social scientists would be using text data mining to place their conduct at oral argument under the microscope. The justices may not relish empirical findings such as that they favor one side over another at oral argument or that some justices’ votes are highly predictable based on whom they interrupt. The justices may have also not appreciated that their behavior at oral argument was already becoming more performative (partly due to increasing political polarization) and that the increased transparency brought by Oyez might accelerate this trend.

Lawyers, law students, journalists, and academics who study the courts all benefit from Jerry’s work in founding Oyez.com. It is hard to think of one person who has done more to make an aspect of the Supreme Court’s decision-making process more transparent, available, and accessible to the broader public.

This post is based in part on a telephone interviewwith Jerry Goldman on November 13, 2018, and follow-up emails.