Who is the funniest justice? (and is that really something to be proud of?)

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It is reported that when Justice Breyer was told he was the second funniest justice of the 2004 Term, he said something along the lines of “being the second funniest justice is like being the shortest tall person.”

Breyer was probably referring to the lack of tough competition: as others have anecdotally judged, and we have assessed after studying all 1,100 incidents of laughter at the Court between 2010 and 2017, most humor at the Court would not muster the $50 traditionally paid by late-night shows for jokes. We saw in the last post that oral argument has become a lot funnier in the last four decades, yet even in that considerably more comedic era, being the “funniest justice” may still not be a title that anyone should aspire to—not only because the humor is mediocre, but because being number one is arguably a badge of dishonor.

The reason is that what others have called the “funniest justice” scale looks very much like a scale of which justice is the most biased in their use of humor, as the next figure shows. On the left are the justices in the modern era who get the most laughs; on the right are the justices who show the greatest laughter disagreement gap—the tendency to make jokes during the time of an advocate whom they ultimately vote against.

ScotusOA: Use of Humor at the Supreme Court, for each justice, per
argument (Left); Agree/Disagree Difference in the same (Right)

There is a pretty clear correlation between being the “funniest” and being the most biased on this scale. Five of the seven justices who most often inspire laughter—Justices Scalia, Breyer, Rehnquist, Kagan, and Souter—were the top five most biased in their use of humor against advocates they end up voting against.

Not all of the so-called funniest justices are at the very top of the bias rankings, but all lie near the top in the broader historical rankings. Even less biased justices in modern terms, such as Chief Justice Roberts and Justice Gorsuch, who were third and fifth on laughs but ranked lower on the laughter bias ranking, still leave all of the justices serving in the early era far behind in terms of bias.

The secret to humor is … … timing

As we showed in our last post on this topic, laughter at the Court has significantly changed in the last four decades, increasing dramatically at the same time as the Court became more performative more generally. But that dramatic increase was not simply a product of a change in personnel: as we show in our comprehensive new study, Taking Laughter Seriously at the Supreme Court, forthcoming in Vanderbilt Law Review, the increase in laughter at the Court also stems from changes in the behavior of existing personnel. The next figure shows the rate of laughter for each justice on the Rehnquist and Roberts Courts, from the 1970s until the 2017 Term.

Term average for laughter per oral argument for each justice. Original figure in Jacobi & Sag, Taking Laughter Seriously at the Supreme Court (2019)

Of all the justices who were on the Court in this Century, it is the three with consistently low levels of laughter who are the outliers. Justice Thomas’ almost-zero level of laughter inducing episodes is unsurprising, since he barely speaks and, so, rarely gets a laugh. The other two low fliers appear to be Justice O’Connor and Justice Ginsburg, but both are only low on the humor scale compared to their modern contemporaries—when compared to all of the justices serving since 1955, Justice Ginsburg is in the top half and Justice O’Connor is very close to the top half.

Many of the other justices display an upward trend in their laughter inducing behavior. For instance, Justice Scalia, who is said to have changed oral argument when he entered the Court, actually spent his first two years getting few laughs, then had a clear consistent upward trajectory, more than doubling his laughs per argument in his later career. Similarly, coming in at number two overall, Justice Breyer also started off much lower on the laugh scale, as did Justice Stevens, Justice Kagan, Justice Alito, and Chief Justice Rehnquist—until he had a sharp drop off prior to his death.

The differences between the modern justices and the earlier justices, as well as the change within individual justices’ behavior over time, shows that laughter at the Court has changed dramatically in the modern era and strongly suggests that the shift on the Court is not simply due to personnel changes. As we have argued comprehensively elsewhere, the development of oral argument into more of a performance not only coincides with the politically polarized post-1995 period, but the level of political polarization predicts various performance behaviors, such as the justices making more comments than asking questions, interrupting, and talking more. Laughter fits that pattern too: at least in part, courtroom humor is an element of advocacy, and as we have shown, it is directed at weaker and inexperienced advocates with whom the justice tends to disagree. Laughter, in short, is a weapon, and the funniest justice is the most vicious.

Laughter and political polarization

“Against the assault of laughter, nothing can stand”

Justice Scalia is often celebrated for his humor, described as able to “crack up a room,” memorialized by President Obama as having “incisive wit,” and regularly labeled “the funniest justice” in a given Term. Yet, as Adam Liptak pointed out, what passes for humor at the Court “would probably not kill at the local comedy club.” This is true for all the justices, but especially Scalia, who regularly got laughs for scathing comments and sarcastic asides that are hard to credit as humorous. A few examples:

Justice Scalia:   Wow. Wow, that’s — I mean, that’s my comment. (LAUGHTER.)

Justice Scalia:   Oh, yeah, I’m sure that’s what they all had in mind. I had no doubt of that. [LAUGHTER]

Mr. Phillips:     … We’re going to leave the status quo ante, which means before the contracting officers declared that there was a default under these circumstances.

Justice Scalia:   It’s the “go away” principle of our jurisprudence, right? [LAUGHTER]

In our previous two posts, we showed that courtroom humor (i.e., the comments that inspire laughter) is a form of judicial advocacy, directed by the justices to those advocates they disfavor, and that humor is directed at the weak, with inexperienced advocates and those losing before the Court as a whole being the typical targets. In this post, we ask why that might be so.

Laughter is a blood sport in the culture wars

We surmise that humor at oral argument often takes this form because in the modern era the arguments have become a forum in the broader political war between highly ideologically polarized camps. Just as we showed that, starting in the mid-1990s, oral argument has mimicked changes in the political institutions toward extreme polarization, so too laughter, as a vehicle for judicial advocacy in the high-stakes fight for political dominance, follows that same tendency. Consequently, it is not surprising that the “blood sport” of humor at the Court often reflects the mean-spirited pursuit of domination that the Scalia examples above illustrate.

Our previous research suggests that the political polarization that began in the mid-1990s was reflected in the tendency of the justices to take on a greater advocacy and performative role during oral argument. Not only do the justices talk a lot more in the modern era, but they show a greater difference between how much they have to say to those the agree with (little) and those they disagree with (a lot). We call this the “disagreement gap.” In our new study we found that the same disagreement gap is also evident in the use of courtroom humor. We also found that the same differential exists for winners versus losers. The figures below illustrate the time-trend for both of these effects.

ScotusOA: Aggregate agree-disagree difference in justice inspired laughter at the Supreme Court, by term
ScotusOA: Aggregate win-lose difference in justice inspired laughter at the Supreme Court, by term

The first figure shows the disagreement gap in laughter over time. The bars below the zero line indicate more judicial laughter when the justice disagrees with the advocate (i.e., ultimately votes against). It is clear that starting in 1982, the gap was consistently below zero, except for the single 1985 Term—in every other year, the Court as a whole displayed this tendency. Since 1995, the beginning of the exceedingly polarized period of politics in the U.S., the effect has become considerably larger.

The second figure shows the results of the same analysis but looking at whether laughs occur during the time of the advocate who is losing more often than during the time of advocate to a winning— the former lies below the line for the Court overall, the latter above. Clearly, starting at the same time, 1982, but with a few more exceptions, and once again considerably increasing in scale after 1995, the Court tends overall to make jokes during the time of losing advocates, an effect that is both substantively and statistically significant after 1995.

The Court as a haven for vulnerable minorities?

Do the justices laugh more at losers because they are making fun of bad arguments? Perhaps, but it seems more likely that they are making fun of weak advocates for their weakness. This interpretation is supported by an additional slice of data: our study also shows that the justices make significantly more jokes at the expense of inexperienced advocates, and that this effect amplifies both the disagreement gap and the win-lose gap discussed above. The figure below shows the trend of judicial use of courtroom humor over time, by level of advocate experience.

ScotusOA: Three-year moving average of Justice inspired laughter at the Supreme Court. Novices are appearing for the first time; Very experienced advocates have 10 or more previous appearances.

As the solid blue region indicates, judicial laughter overall has massively increased in the modern era of the Court. The graph also shows that laughter at novice advocates, illustrated by the solid line, has always been higher than that for very experienced advocates, indicated by the dashed line; however, the disparity increased massively starting in the late 1980s, particularly after 1995, during the polarized political era. Given that inexperienced advocates are most likely to represent less powerful clients, such as prisoners, means that the justices’ jokes land most heavily on those representing the most vulnerable parties before the Court.

So we may laugh when the justices get laugh after laugh for variants of the popular “how would you like to lose” jest and other forms of humor based on superiority—Justice Scalia enjoyed the laughter in response to his “go away” joke above so much that he made it three times in the one argument. But we should know that we are really laughing at another manifestation of the political polarization that is dividing the nation.

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.