"Attempts at humor usually fall flat." This concise admonition from the official guide for lawyers arguing before the Supreme Court makes clear that jokes are not the prescribed oratorical device for winning cases. This guidance, however, does not extend to the nine justices, who quite liberally inject levity from the bench. In fact, in the 70 cases heard by the Court during the 2007-08 term, the notation "(Laughter.)" appears 187 times in official Court transcripts. Justice Antonin Scalia: "I wish you had said that in your brief because we could have saved ourselves a lot of reading. (Laughter.)"
The justices are not using the oral arguments as auditions for a guest appearance on David Letterman. Their humor is generally dry and appropriate for the high-intensity atmosphere of the nation's highest court. A frequent target is the legal profession. Yes, the justices of the Supreme Court tell lawyer jokes! Justice Anthony Kennedy: "There are all kinds of nuts who could get 90 percent on the bar exam. (Laughter.)" Justice Scalia: "Cannot communicate coherently? I sometimes-I sometimes think that the lawyers cannot communicate coherently. (Laughter.)"
Several times this term the Court heard cases involving politics. A subject that every Supreme Court justice knows as well as a late-night comic will lend itself to wry observations.
Mr. White: The Libertarians require you to sign a membership application that they oppose the use of force in the resolution of political disputes.
Chief Justice John Roberts: Libertarians have a lot more rules than the other parties. (Laughter.)
Or:
Justice David Souter: [D]o you know any people who go around saying, well, you know, I really prefer the Democrats; I'm a Republican myself? I mean that, that doesn't happen.
Mr. McKenna: Well, the example of Senator Lieberman comes to mind, where he said I really prefer the Democrats and I'm running as an independent. (Laughter.)
Justice Souter: There's always one.
That last is a rare instance of a lawyer, contrary to the Court's strong suggestion, using humor to support a point-generally only when a lawyer is engaged by a justice who opens the door for a witty response. "The unheralded role of the oral advocate is to play straight man for the justice," observes recently departed Solicitor General Paul Clement, who has argued 49 cases before the court. He says a lawyer can't go wrong by keeping humor out of the oral argument and advises against it for any lawyer making his or her first appearance before the Court.
Often the justices tell "jokes" that few outside the courtroom can appreciate: inside baseball variety observations that make for comic relief for a very select audience. Justice Souter: "As a dissenter in Carbone, I naturally do not find that the worst answer you could give. (Laughter.)" Justice Samuel Alito: "Well, as a dissenter in United Haulers, I also don't think it's a good distinction. (Laughter.)"
No lawyer wants to hear a barb pointed at him (or fail to laugh at the jokes of a justice weighing his argument), yet multiple times throughout the term, justices did just that. It is unlikely that any law school moot court prepares lawyers for this kind of barrage:
Justice Kennedy: I think the reason you hesitated to answer yes might be inconsistent with your position. (Laughter.)
Or:
Justice Stephen Breyer: That is not an answer. (Laughter.) I would appreciate an answer to the question.
Or:
Justice Souter: How about "yes" or "no"? (Laughter.)
There is no question that Scalia outshines the rest in courtroom jocularity. "That is who he is. He's not trying to perform," says former Scalia clerk and George Washington University law professor John Duffy. "He knows that in order to engage people and to be understood sometimes humor makes the point clearly. I learned from him that there is power in the way you convey thoughts."
Scalia's humor tends to come out during the extended questioning of a lawyer. While it may be difficult to predict the timing of his humor, there are certain issues sure to draw his ire in a way that only he can express.
That's extraordinary. I don't know of any tax that a State could possibly impose, that no State has imposed. (Laughter.)
I don't think Congress had the slightest idea. (Laughter.)
Do you think we should trust our incumbent senators and representatives to level the playing field for us? (Laughter.)
