Charles S. Kramer, The Levison Group
So, a lawyer finishes his oral argument before the U.S. Supreme Court and heads to a local D.C. tavern to decompress. He is sitting there, shaking his head and mumbling to himself, when a buddy sees him and walks over.
“Why the glum face?” he asks.
“I was before the Supreme Court today,” the friend explains, “and I just couldn’t help myself. It was as if I was back in college, doing the amateur comedy circuit. First words out of my mouth were something like I was going to apologize for my nervouseness but realizing the men in front of me were wearing dresses made that unnecessary, although I couldn’t help wondering what each of the justices were wearing under their robes.”
Such direct humor at the expense of the sitting judges doesn’t actually occur before the Supreme Court, at least not if you wish to win your argument. However, the amount of jokes and levity that both arguers and the justices impart into the proceedings may surprise many. The fact that there have now been at least three studies of humor before the high bench since 2005 may surprise even more.
The official transcripts of Supreme Court argument historically noted when laughter broke out in the gallery. They did not attribute the remarks that caused the reaction to any particular judge until late 2004. From that point on, however, better annotated transcripts made it easier to determine who the Robed Jokesters turned out to be, and it was only a matter of time until people began tracking and comparing.
The first study was done by a law professor from Boston University, Jay Wexler. He reviewed the transcripts from the nine month term that began in October 2004 and concluded in July 2005, and published his results in a law journal called “The Green Bag.” According to Wexler, Justice Scalia was the funniest justice of the term, racking up 77 laughing episodes — slightly more than one laugh per argument. He stomped his competition, with Justice Beyer being second best at a trailing 45 episodes. (Though it should be noted that Chief Justice Rehnquist, known for his wit, missed more than 30 arguments that term due to illness.)
The next, full-blown analysis, was completed in late 2010. In 2010, Ryan Malphurs, a litigation consultant with a doctorate in communications, analyzed transcripts from 2006 through 2010. He went further than just tallying up “laughter” annotations, identifying three separate types of humorous injections: superiority, incongruity, and relief. Malphurs also adopted a very serious, analytical tone, whereas Wexler’s paper itself sounded in levity. Under Malphurs more terse analysis, Justice Scalia again proved to be the leader, however, again followed by Justice Breyer. Roberts, who was not on the bench for the first go round, claimed third place by a comfortable margin, with Alito and Ginsburg clearly holding down the “not funny” seats.
Malphur’s report also identified targets of justice humor, finding the justices likely to make fun of themselves or the lawyers before them, much more often than they would poke fun at another justice.
The subject was revisited once again seven years later, in October of 2013. This time, however, the researchers looked past mere transcript notations, listening to audio recordings. The study entitled “Too Much Frivolity, Not Enough Femininity: A Study of Gender and Humor at the U.S. Supreme Court” compared those audio recordings to transcripts, and found laughter to be much more prevalent than noted by stenographers. Focusing on Justice Ginsberg, for example, the study found six laugh-provoking comments, whereas stenographers credited only two. Despite the revealed inaccuracy of the stenographers’ notations, however, the oversights do not appear to have affected the conclusions. The 2013 study once again found Justice Scalia to be the top laugh-getter (crediting him with 136 laughers, compared to the stenographers credit of less than 100), and again ranked Justice Breyer firmly in second place as well (93 laugh provokers, as opposed to the stenographers credit of less than 75). Justice Thomas, who seldom asks questions, accounted for no laughs whatsoever. The study also found that women advocates joked less than their male counterparts, and the justices directed humorous statements at women lawyers less often as well. That aspect of the study is subject to question, however, due to the great disparity between the number of women advocates and male advocates behind the high bench, and the fact that the instructions to advocates specifically warns AGAINST attempting to insert humor (and we all know how bad men are at following directions).
So next time somebody says that going to court is no laughing matter, tell them to think again.
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Under Analysis is a nationally syndicated column of the Levison Group. Charles Kramer is a principal of the St. Louis, Missouri law firm Riezman Berger PC. Comments or criticisms about this column may be sent to the Levison Group c/o this newspaper or to Comments@levisongroup.com or ckramer@riezmanberger.com.
© 2015 Under Analysis L.L.C.
