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.