Dissensus on the Census

Checking every box

New York State’s challenge to the decision to include a citizenship question on the 2020 Census administered by the Department of Commerce checks every box for a Trump era Supreme Court case. Here we have states and public interest groups trying to hold the executive branch of the federal government to account for a decision that is technically within its power, yet self-evidently made in bad faith, and for which pretextual support is offered after the fact.

ScotusOA.com model prediction based on Supreme Court Oral Argument in Department of Commerce v. New York (April 23, 2019)
ScotusOA.com model prediction based on Supreme Court Oral Argument in Department of Commerce v. New York (April 23, 2019)

The Trump administration argues that asking about citizenship will make it easier to comply with the mandates of the Voting Rights Act, but the evidence available to the Secretary of Commerce when he made this decision was that a citizenship question would significantly depress response rates—primarily in households with undocumented or Hispanic residents. This in turn would make all the Census data less accurate (including the data on citizenship). The 2020 Census data will be used to draw redistricting maps, so Republicans have an obvious partisan interest in artificially depressing the apparent population in communities with high numbers of immigrants because these tend to vote Democrat. Oral argument last week in Department of Commerce v. New York reflected that partisan advantage to the conservative party.F

The argument divided quite predictably along ideological lines. Even though Justice Ginsburg shows as 60% likely to vote for petitioner, this is an artifact of her low numbers—she was the only justice (other than Thomas) to be remarkably uninvolved in the argument. She spoke 77 words to the three advocates on the Respondent side, challenging the inclusion of the question, and 112 words to the Solicitor General, representing the Petitioner. In essence, Ginsburg was not showing her hand.

Country before party?

In contrast, the rest of the speaking justices were uninhibited in showing their partisan colors. The conservative justices barely spoke a word in response to the Solicitor General’s cavalier attitude to potentially depressing responses to the census, then pounced on Respondent advocates—particularly Barbara Underwood, representing New York State—questioning every methodological aspect of the expert certainty regarding the effect inclusion of the question will have.

For their part, the three other liberal justices were actively involved, but all shied away from stating the real problem: the bad faith of government, and Secretary Wilbur Ross in particular. Only at the end of the government’s main period of argument did Justice Kagan come close to naming the misconduct at the heart of the issue, with echoes of the Nixon hearings underlining her words:

Elena Kagan: And if I may say — I’ll just finish here, General — I mean, a lot of your argument — your briefs are extremely well done.

Noel J. Francisco: Thank you.

Elena Kagan:  But a lot of your argument just do not appear in the Secretary’s decision memo. And — and the fact that SG lawyers can come up with 60 pages of explanation for a decision, that’s all post hoc rationalization. The question is, what did the Secretary say? Where did he say it? When did he say it? What does it mean, other than just ipse dixit and conclusions?

We have seen that the new conservative appointees nominated by President Trump have looked like siding with the liberals on a few issues, such as ineffective assistance of counsel, excessive fines, or ensuring broader access to Kavanaugh’s much loved beer. But when it comes to rigging elections to benefit the Republican Party, be it through gerrymandering or corrupting the Census all of the conservatives fall into partisan formation.

An accurate census is vital to many things, as mentioned, but it is also key to the Democratic system functioning properly. Similarly, political gerrymandering can prevent meaningful democratic involvement. Without the Supreme Court monitoring the self-interest of politicians in these core constitutional matters, everyone will suffer in the long run. The fact that Republicans may benefit in the short term should not blind these justices to the good of the country.

Prediction:

Petitioner (Department of Commerce): Alito, Gorsuch, Kavanaugh, Roberts, Thomas

Respondent (New York): Breyer, Ginsburg, Kagan, Sotomayor

Most likely to switch: no one will switch

Trademark, scandal, and dodging precedent in Iancu v. Brunetti

Last Monday, the Supreme Court heard argument in Iancu v. Brunetti over whether the Patent and Trademark Office (PTO) can refuse to grant trademarks to “immoral” or “scandalous” matters, as permitted under §2a of the Lanham Act. Last year, in Matal v. Tam, the Court ruled that the same section’s mandate to the PTO to deny trademarks to “disparaging” matters was unconstitutional, thus prohibiting the PTO from denying trademarks to brands based on, among other things, racial epithets.

The right to offend minorities versus the right to offend the majority

Tam was a difficult case: the facts at issue concerned an Asian band, “The Slants,” who embrace that traditionally derogative term in an ironic sense, so as to undermine the power of the offensive term. Importantly, the Court did not limit its ruling to minorities reclaiming derogatory terms; instead it held that genuinely racist, sexist, and other derogatory trademarks could not be barred by the PTO on those grounds. Having unanimously (though in split opinions) decided Tam, it seems to follow inexorably that “immoral” and “scandalous” marks must receive like treatment. Paradoxically, however, the Court last week seemed considerably less inclined to allow the PTO to prohibit swear words than to prohibit racial slurs.

In the oral argument in Iancu v. Brunetti, many of the justices went to great lengths to try to differentiate Tam, and their efforts were less than convincing. Chief Justice Roberts seemed to be more concerned with the idea of obscene trademarks than with the idea of trademarks for hate speech. Justice Breyer suggested that swear words could just be considered “fighting words,” and thus an exception to First Amendment protection—yet a white-owned company exploiting the term “Redskins” is not. Many of the justices seemed willing to contemplate allowing words that are incredibly offensive to minorities to become federal trademarks, but not words that might offend genteel folks, such as the justices themselves.

ScotusOA.com prediction based on Supreme Court Oral Argument in Iancu v. Brunetti (April 15, 2019)

How can you give a FCUK™ without getting FUCT™?

We think that Justices Sotomayor and Kagan are in fact in Respondent’s camp, despite the unclear signals they gave. They both see Tam as binding precedent in this case. They also seemed concerned, like Justice Gorsuch, that there was no “rational line” through the PTO’s inconsistent decision-making regarding words that are phonetically similar to “fuck,” whether in past tense or present tense.

The PTO defines vulgarity, a subcategory of scandalous terms, as “lacking in taste, indelicate, and morally crude.” These terms are, of course, inherently subjective and discretionary and by its own admission the PTO’s application of this test has been highly inconsistent. The PTO has allowed “FCUK,” “Fugly,” and “PHUKIT” to be trademarks, but denied, in the case at hand, a trademark for “FUCT.” But the government promises only to apply the seemingly broad terms of the statute far more narrowly in future, and argues this should help it avoid the finding of unconstitutional vagueness.

A case driven by confusion and prim euphemism

The core goal of trademark is to avoid consumer confusion. Ironically, the Iancu v. Brunetti oral argument was itself clouded with confusion about some very basic features of trademark law. One striking misunderstanding came from Justice Alito:

Justice Alito: “What’s going to — if this is held to be unconstitutional, what is going to happen with whatever list of really dirty words still exist and all of their variations? There’s going to be a mad scramble by people to register these marks. And the ones who get there first are going to have exclusive — they’re not unlimited. What’s going to — there’s going to be — those who get there first are going to be the ones who have these.”

We think the Justice might be confusing trademarks with the race to claim internet domain names. Registration of a mark in one classification does not preempt other non-confusing uses of the same word, either as a trademark or as a verb.

One thing that the Court did not seem confused about was the word at issue. Rather disappointingly for those among us who consider that swearing can be a linguistic art form, none of the advocates or the justices were willing to say the word “FUCT.” Instead, Mr. Stewart made sure the Court was clear on the term by using up his time by saying, more than once, this rather elaborate and wordy euphemism: the term that “would be perceived as the equivalent of the past participle form of the — the paradigmatic profane word in our culture.” Are the justices so sheltered and fragile that advocates must avoid even the conventional euphemism of “the f-word?” If so, this once again raises the problem of the unrepresentativeness of this elite group of jurists, particularly when deciding cases that hinge on the mores, perceptions, and likely inferences of the much more diverse U.S. population.

In similarly euphemistic terms, Mr. Stewart referred to a “particular racial slur [which] is considered uniquely offensive, even as compared to other racist speech” and argued that accordingly “it could be denied registration on the ground that it was an impermissible mode of expressing a racist — racist thought.” So the government wants not only to treat rude words as more offensive than racial slurs, it also wants to differentiate among the racial slurs that it considers beyond the pale, even after the Supreme Court has ruled that it does not have the power to make such determinations. We applaud the PTO’s act of civil disobedience here, but it is very hard to reconcile with the Court’s opinion in Tam. Similar acrobatics and logic will be needed to differentiate this case from Tam, but our analysis suggests that at least some justices on the Court are willing to limber up and do their best to take on that challenge.

It could be that the outcome will actually be unanimous for Respondent, if only because terms such as “scandalous” and “immoral” are clearly at least as unconstitutionally vague as “disparaging,” and would return the Court to regulating morality, a task it has struggled with in the past. As we have previously discussed, unanimous and lopsided decisions are hard to predict due to cheap talk at oral argument. Justice Breyer and the conservatives (other than Gorsuch) may have simply been clucking their displeasure at the vulgarity of the Respondent. They may in fact rule in his favor while clutching at their pearls. But the cavalier attitude of the Court during oral argument this Term toward other precedents makes us skeptical.

Prediction:

Petitioner (PTO): Breyer, Roberts, Alito, Kavanaugh, Thomas

Respondent (Brunetti): Ginsburg, Gorsuch, Kagan, Sotomayor

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

Judge walks into a (Supreme Court) bar

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.

The Supreme Court is toasting marshmallows while democracy burns

Partisan Gerrymandering and the Passive Court

Last week, the Supreme Court considered (yet again) whether there should be any constitutional remedy for outrageous and blatant partisan gerrymanders—specifically the Republican gerrymander in North Carolina and the Democrat gerrymander in Maryland. The two cases, Rucho v. Common Cause and Lamone v. Benisek, were heard back to back over a total of 2 hours and 11 minutes.

The central question at oral argument in both cases was not whether partisan gerrymandering was good or bad—everyone knows it is bad—the question was whether there is anything the Court can and should do about it. Most people think this a bit like asking whether there is anything the fire department should do when an arsonist is pouring gasoline on a schoolhouse. But to be fair to the justices disinclined to act, there are some thorny conceptual questions to address before the Court can take action against the politicians and mapmakers currently setting fire to our democracy.

The ability of politicians to choose their voters, rather than vice versa, is dramatically increasing. In 2016, only 40 of the 435 seats in the House were competitive, compared to 100 in 2010, when gerrymandering was already a problem. After the 2010 census, the problem of partisan gerrymandering intensified dramatically due of a perfect storm of increased computer power, better statistical models, and more granular and more reliable data on individual voters. If the Supreme Court fails to act in Rucho and Lamone, the number of competitive seats could drop even lower and our votes will mean less and less.

Not only do partisan gerrymanders reduce accountability in individual districts, they often lead to counter-majoritarian results state-wide. In the last election, Wisconsin Democrats received 205,000 more votes than Republicans, but won only 36 of the 99 available seats in the gerrymandered State Assembly. In another gerrymandered race in 2018, Ohio Democrats got nearly 50% of the vote but only a quarter of congressional seats. North Carolina is a virtually evenly divided “purple” state. Yet in 2018, where Democratic candidates won every statewide election on the ballot, Republicans won the 10 of 13 districts—just as their map makers promised them.

In Rucho v. Common Cause, Paul Clement tried to persuade the Court that there was no room for the Court to assess even such an extreme disregard for representing the will of voters. But as Justice Sotomayor crisply explained in the very first question of the day: “Mr. Clement, that ship has sailed in Baker v. Carr.” If racial gerrymanders and the unequal weighting of votes (the issue in the 1962 case of Baker v. Carr) are justiciable, it makes no sense to say that partisan gerrymandering is inherently non-justiciable.

Currently, legislators craft maps that involve absurd line drawing in order for politicians to insulate themselves from public accountability, as can be seen in the map below of
Maryland’s 3rd Congressional district. Without the possibility of judicial review, there is no reason politicians will have to follow even the most basic intuitive criteria, such as contiguity. Non-justiciability amounts to a free-for-all.

Maryland US Congressional District 3 (since 2013)

Politicians around the country will use all the information in their voter files and all the tricks of big data to ensure that the will of the people is irrelevant to determining who represents them. As well as the 10:3 split in North Carolina, we should expect to see a 18:0 split in Illinois if the Court holds that partisan gerrymandering in non-justiciable—anyone who thinks Mike Madigan will care about traditional districting criteria (other than the mandatory one-person-one-vote requirement) if the courthouse door is closed to complaints about partisan gerrymandering is a fool.

Disproportionate angst over proportional representation

The hardest question in partisan gerrymandering is how one can definitively say whether a district map or a statewide map is fair or unfair without simply relying on the fact that it fails to deliver proportional representation. Of course, proportional representation sounds appealing, but individual House members represent distinct geographic areas and are elected on a “first past the post” basis—both factors are likely to produce non-proportional outcomes from time to time, even without deliberate partisan bias.

Although Paul Clement is a gifted advocate, we thought that Justice Alito actually expressed North Carolina’s argument most effectively:

Justice Alito: But, if you have 24,000 maps that satisfy all of the so-called neutral criteria that you put in your computer program, don’t you need a criterion or criteria for deciding which of the 24,000 maps you’re going to choose? And implicit in Justice Kagan’s comments is the idea, is it not, that you have to choose one that honors proportional representation?

To confirm our impression that proportional representation was the issue of the day, we broke the transcript in Rucho down into two word ngrams. Excluding the names of the justices, the most frequent 2grams (two-word ngrams) are illustrated below, with larger words being more frequent.

ScotusOA.com: Most frequent word pairings in Rucho v. Common Cause oral argument.

“Proportional representation” was mentioned 44 times in Rucho, whereas the next most common 2grams, “North Carolina” and “majority votes”, were mentioned only 14 and 11 times, respectively. Proportional representation was also the most common 2gram in Lamone v. Benisek, where it was only mentioned 12 times.

For all the angst over proportional representation, the quandary is overstated. The answer to the proportional representation question is surely that in a representative democracy with a constitutional guarantee of equal protection, we are all entitled to have our votes aggregated according to fair and reasonable criteria. A fair process will lead to something close to proportional representation in most cases, but not inevitably: respecting natural and political geography can lead to something different without violating the Constitution.

The Constitution does not guarantee proportional representation, but the Equal Protection Clause and First Amendment both require that district boundaries are drawn by a fair process, applying appropriate criteria. Partisan advantage, i.e., rigging the system in favor of your own team, cannot be one of those criteria.

Last call for democracy

Rucho v. Common Cause and Lamone v. Benisek are the last chance the Court has before the 2020 census to do something about partisan gerrymandering. So, with the future of democracy in the balance, how is the court likely to rule?

ScotusOA.com prediction based on Supreme Court Oral Argument in Rucho v. Common Cause (March 26, 2019)

Our predictive model for Rucho v. Common Cause is not encouraging. It shows a clear partisan split, with all of the Republican-appointed justices strongly leaning towards preserving the Republican gerrymander in North Carolina and all of the Democrat-appointed justices clearly against.

ScotusOA.com prediction based on Supreme Court Oral Argument in Lamone v. Benisek (March 26, 2019)

Our model’s predictions for Lamone v. Benisek are a bit confused by the fact that the justices seemed to be running out of steam at the end of the second hour of gerrymander-palooza. An optimist might conclude that the brazen Democratic Party gerrymander in Maryland will make Chief Justice Roberts see that the dangers of inaction for the Court outweigh risks of entering the dreaded “political thicket”, but we are doubtful. As for Justice Kavanaugh, based on some of his questions and comments, there is an outside chance that he will defy partisan expectations, but this is probably just wishful thinking.

Predictions for Rucho v. Common Cause and Lamone v. Benisek

Appellants: Alito, Gorsuch, Kavanaugh, Roberts, and Thomas

Appellees: Breyer, Ginsburg, Kagan, and Sotomayor

Most likely to switch: Kavanaugh and Roberts

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.

When is a cross not just a cross?

Hint: Almost always, and definitely when it’s 40-feet-tall!

The Establishment Clause expressly prohibits the State from making any “law respecting an establishment of religion.” Yet, for decades, the Supreme Court has applied this particular limit on government power only selectively and half-heartedly. On the facts, it seems obvious that a 40-foot-tall stone and concrete cross set astride a traffic median by the State of Maryland is, first and foremost, a religious display by the State. It is equally obvious that the decision to honor WWI veterans with this particular symbol is either pretextual or secondary to the religious symbolism of the Latin cross. Granted, a cross can be seen simply as a marker for the dead (although many find it exclusionary, and offensively so, in that context) but when the cross is 40-friggin-feet-tall, its predominant meaning is unmistakable. 

Facts versus fictions

As clear as American Legion v. American Humanist Association might be on the facts, we suspect that in this particular area of constitutional law, facts matter a lot less than beliefs about the inherent legitimacy of Christian values and identity as universal American values and identity.

The universalist claim is wrong in every possible way. The founders did not hold to it even when the population was overwhelmingly Christian, and there are now more non-Christians in America today than there are people in Thailand, the United Kingdom, France, or South Korea. Nonetheless, the fiction that symbols like the Latin cross and the Ten Commandments are simultaneously Christian and yet universal is an article of faith among many conservative Christians, and this almost certainly includes the five conservative Christian men who constitute the majority of the Supreme Court.

Unpredictable jurisprudence, predicable jurists

The Establishment Clause jurisprudence on questions such as the mandatory prayer readings and the display of religious monuments is inconsistent and unpredictable, but the justices themselves are not.

Our predictive model, based solely on the oral argument, is almost exactly what you would expect. We see Justices Alito, Gorsuch, and Kavanaugh strongly in favor of the Petitioners (The American Legion and The Maryland-National Capital Park and Planning Commission), joined by Justice Breyer (consistent with his live-and-let-live concurrence in Van Orden v. Perry) and Chief Justice Roberts (who admittedly comes out as a toss-up on the numbers, but there seems little doubt where his sympathies were).

The female justices of the Supreme Court, Justices Ginsburg, Kagan, and Sotomayor, seemed far more skeptical of the universalist assumption. It is probably no coincidence that Ginsburg and Kagan are Jewish and that Sotomayor is (in her own words) a wise Latina.

Bar chart showing predictions for each supreme court justice. Justices are ordered from pro-Petitioner to Pro-Respondent. Pro-petitioner represented by blue bars to the right of the 50 percent midline in the top half of the figure. Pro-Respondent represented by orange bars to the right of the midline in the lower portion of the figure. The results are discussed in the text.
ScotusOA.com prediction based on Supreme Court Oral Argument in American Legion v. American Humanist Association (February 27, 2019)8

Prediction: 6:3 for Petitioners

For Petitioner: Alito, Gorsuch, Kavanaugh, Roberts, and Thomas. Breyer concurring.

For Respondent: Ginsburg, Kagan, and Sotomayor

Ginsburg is back: is she feistier than ever?

Liberal feminist icon, movie star, survivor. That is how we think of the diminutive 85 year old Supreme Court Justice Ruth Bader Ginsburg. On November 8th last year, Ginsburg was hospitalized after fracturing three ribs in a fall in her office at the Supreme Court. She still turned up for work at the next oral argument in Apple v Pepper on November 26th. But after a CT scan of her ribs revealed signs of lung cancer, the Justice was forced to take time away from the Bench to recuperate from surgery in late December. Justice Ginsburg returned to the Court last Tuesday after missing all of the Court’s January cases (although she kept up with the cases remotely). This was her third bout of cancer but her first absence from oral argument since arriving in 1993.

Ginsburg’s Return

The stage for Ginsburg’s return was an obscure but engaging question of statutory interpretation as to whether the government—the U.S. Postal Service in this case—is a “person” entitled to use the post-grant patent review procedures under the 2011 America Invents Act.

Ginsburg was the first justice to ask a question in Return Mail, Inc. v. United States Postal Service on Tuesday and she followed up four more times over the course of the hour. Ginsburg’s first question forced Petitioner’s advocate Beth Brinkmann to concede that her point about estoppel, which she described as the “linchpin” of her argument, was not actually an essential element of that argument.

Ginsburg’s second question began one of the main themes of the discussion that followed:

Ruth Bader Ginsburg:

But why — why would — why would the government — why — why would Congress want to leave a government agency out of this second look if the idea is to weed out patents that never should have been given in the first place?

Ginsburg Watch

For those who care more about whether President Trump will get a chance to complete the Federalist Society takeover of the Supreme Court than they do about the intersection of patent law and administrative law, the burning question on Tuesday was simply: how was Justice Ginsburg?

NRP’s Nina Totenberg reported that at the end of the argument, Ginsburg got up carefully, descended the steps behind the bench and walked out on her own. Listening to the argument on Oyez.org, we were struck that Ginsburg’s voice sounded stronger and clearer than it has for a long time. But with all the hype surrounding “Notorious RBG” these days, we thought we should try to answer the question empirically.

The figure below shows the number of words that Justice Ginsburg spoke at each argument over the course of the 2018 Term thus far. We split the data around Justice Ginsburg’s injury when she cracked her ribs: the arguments prior to November 8, 2018, are represented by the orange bars; those afterward are represented in light blue. The superimposed gray dots represent the average number of words spoken by the nine justices of the Court in each argument.

Figure showing the number of words spoken by Justice Ginsburg each argument over the course of the 2018 Term
ScotusOA.com: Justice Ginsburg’s Participation in Supreme Court oral argument, 2018 Term

As the figure shows, Ginsburg usually speaks less than the average justice and her level of participation varies. Although she seemed slightly subdued after her injury in November, she actually contributed more than the average justice in two post-November 8 cases, Nutraceutical Corp v Lambert on November 18 (722 words) and Gamble v United States on December 6 (567 words). For the rest of the Court, these cases were not unusually quiet.

Perhaps our subjective impression of Justice Ginsburg’s strong performance on Tuesday was a result of relief at having her back, or noting the strength of her voice, or wishful thinking, but it doesn’t really fit the objective data for the Term. Justice Ginsburg certainly made her presence felt in Return Mail, but she only spoke 123 words. To put that in context, she spoke more than this in 25 cases this Term and less in only 6 others excluding the January cases where she was absent. In fact, in 20 cases this Term, Ginsburg has had more to say to just one side of the argument (i.e., Petitioner alone or Respondent alone) than she said to both sides in Return Mail. Ginsburg is back, but only at 56% of her average for the Term.

We wish her well in her continuing recovery.

A truly unusual coalition: Predicting Garza v. Idaho

Back in late October last year, the Court heard argument in Garza v. Idaho on whether the “presumption of prejudice” for ineffective assistance of counsel should apply when a criminal defendant instructs his counsel to file a notice of appeal but counsel decides not to do so because the defendant’s plea agreement included an appeal waiver. In a time where pleas account for approximately 97% of resolutions of criminal defense matters, and when appeal waivers are increasingly demanded by prosecutors, the case has the potential to offer one small procedural protection in a context in which the usual procedural protections mostly do not apply. Garza v. Idaho also will potentially reveal some unusual coalitions among the justices, and offer an opportunity to learn more about the views of the Justice whose voting record we know least about, Justice Kavanaugh.

Our prediction is that any day now we may see the newest conservative justice cross the metaphorical divide and vote with his liberal brethren in Garza. Here is our prediction:

Supreme Court Oral Argument Prediction for Garza v. Idaho based on the oral argument of October 30, 2018.
Supreme Court Oral Argument Prediction for Garza v. Idaho based on the oral argument of October 30, 2018.

Elsewhere, one of us (Jacobi) has argued that what are often called “unusual coalitionsare not so unusual. Cross-ideological coalitions often occur where the rift is between pragmatists—such as Justice Breyer on the left and Justice Alito on the right—and formalists— most notably Justice Ginsburg on the left and Justice Scalia on the right.

Garza is interesting because, based on our prediction, the case seems set to bridge both the liberal-conservative and the formalist-pragmatist divide. It has pragmatists such as Breyer joining with formalists such as Justice Gorsuch, both seemingly favoring the pro-defendant side.

The central issue in Garza is the correct application of an earlier Supreme Court case, Roe v. Flores-Ortega. Tellingly, Ginsburg and Breyer split in that case—Breyer opting for a case-by-case approach, and Ginsburg joining a dissent in favor of an across-the-board rule.

It appears that in Garza, that split among the liberals is likely to recur. Breyer appears to be sitting strongly in Petitioner’s camp, whereas Ginsburg’s first question suggested that her preference for rules may be more determinative for her here than her usual sympathies for criminal defendants, asking whether the defendant isn’t trying to have his cake and eat it, too.  If we drew a map of the justices along both the liberal-conservative and the formalist-pragmatist dimensions, Ginsburg and Alito would occupy opposite corners, not just opposite sides. But in this case, Alito cross-referenced Ginsburg in the oral argument, something that we have shown to be a sign of likely coalition partners.

And where is Kavanaugh in this unusual mix? In Garza, the Courtroom heard Kavanaugh emphasizing practical concerns. He stressed both that an appeal waiver gives up very little in reality, and that the circuits that have applied a presumption of prejudice have not shown any serious problem. Eventually, he drew an acknowledgment from Respondent Idaho’s advocate that there would be no meaningful practical harm if the state lost on this question. In contrast, Gorsuch asked a series of questions that all had a formalist bent, hinging, for example, on whether a right was statutory in nature, and what the traditional division of decision-making responsibilities is between attorney and client. The two conservatives seem set to agree in ruling in favor for Petitioner, but for very different reasons.

It seems understandable to us that Petitioner could win on both formal and pragmatic grounds. Formally, if it is acknowledged, as almost everyone at the argument was willing to do, that there are some rights that are unwaivable—a plea waiver could surely not prevent an appeal for gross prosecutorial misconduct, for example—then which rights are waived in any circumstance is a question that must have some ambiguity, and thus require legal analysis. Consequently, it cannot be such an obvious question that an attorney can properly fail to respond to his or her client’s expressed desire to challenge. More pragmatically, Flores-Ortega emphasized that the client retains the choice over fundamental matters such as whether to appeal, and last year’s McCoy v. Louisiana embraced the client’s autonomy, even if the attorney in good faith believes it better to concede guilt in order to avoid the death penalty. Similarly, here, whatever an attorney may think of the potential foolishness of jeopardizing a favorable plea deal by appealing a potentially already waived right, it is the client’s choice to make that bad decision. The majority of the Court seemed to be saying that the Court already has practical a solution to the attorney’s dilemma: the attorney can always choose to file an Anders brief, no harm done.

Interestingly, the Court’s two newest conservative justices seemed willing to consider these arguments, even though they cut across the traditional ideological conservative favor for the prosecution. In contrast, the Court’s more senior conservatives seem unlikely to budge from that position. In the case of Thomas, like Ginsburg, this can be explained in terms of formalist methodology. In the case of Roberts and Alito, two of the more pragmatic justices, that decision is harder to square other than in terms of ideological preferences.

Prediction: 5:4 for Petitioner

For Petitioner (Garza): Breyer, Kavanaugh, Gorsuch, Sotomayor, Kagan

For Respondent (Idaho): Alito, Ginsburg, Roberts, Thomas