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.
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.