The Yale Law Journal

VOLUME
117
2007-2008
Forum

Laugh Track II – Still Laughin’!

12 Nov 2007
Jay D. Wexler

Nearly two years have passed since the New York Times reported on Laugh Track, the first-ever scientific study of how funny the various Supreme Court Justices are during oral argument. For that study, published in The Green Bag, I calculated the number of times during the 2004-05 Term that each Justice said something that caused enough chuckling in the courtroom to inspire the Court Reporter to insert the notation “(Laughter)” into the transcript. Although the study was profoundly flawed in almost every respect, it clearly showed that Justice Scalia got the most laughs from the bench, followed not so closely by Justice Breyer. The least-funny Justices during the Term were Justices O’Connor, Ginsburg, and Thomas, who received seven, four, and zero laughs respectively.

A lot has happened at the Court since the study was published. Chief Justice Rehnquist passed away. Justice O’Connor retired. John Roberts became the new Chief, and Samuel Alito was confirmed as the newest Associate Justice. The Justices also accepted seven-percent fewer cases to review, presumably to spend more time working on their jokes. Has it worked? Well, the oral argument laughter data for the most recent Term are now in, and it appears that not so much has changed at the nation’s highest Court.

Following President Bush’s announcement that he was nominating Justice Roberts to the bench, speculation ran rampant about whether Roberts might supplant Justice Scalia as the new Court Cutup. The speculation has turned out to be incorrect. Justice Scalia continues to lead the Court in getting laughs—fifty-four in all during the seventy-one arguments—with Justice Breyer’s thirty coming in second. Roberts got nineteen laughs during the Term, placing him squarely in third place. Going into the final week of arguments, Justices Ginsburg, Alito, and Thomas were tied for last place with zero laughs, but Ginsburg and Alito both managed to break out of the basement by getting a “(Laughter)” in the waning days of the Term, leaving Thomas, who never says anything audible from the bench, all alone in the cellar. Having retired, of course, Justice O’Connor also got zero laughs, slightly down from her 2004-2005 performance.

The Justices get their laughs in all sorts of ways. One popular tactic is the self-deprecating quip. In a recent case, for instance, Justice Kennedy suggested to the arguing lawyer that a certain federal law would not apply to personal employees who do not provide companionship, such as a “maid or a cook or a footman.” Justice Scalia interrupted the prominent lawyer’s attempted response by asking, “What’s a footman? I don’t even know what a footman is.” This was good enough for a “(Laughter),” which apparently was not good enough for Scalia, who repeated his question. “What is a footman?” Stumped, the lawyer said that the question was beyond his expertise.

Once in a while, a Justice will get a laugh just for saying a funny word, like on November 10, 2004, when Justice Breyer made the gallery laugh by saying “Limburger cheese.” And still other times, it’s simply impossible to tell from reading the transcript why anyone would have laughed at the Justice’s words. In such cases, one can only presume that the Justice was making a funny face when talking, or perhaps spoke with a wooden ventriloquist’s dummy or other funny-looking hand puppet.

Not everything is the same as two years ago, though. In 2004-05, Justice Kennedy was funnier than Justice Souter to the tune of two laughs. This Term the two were neck–and-neck at six laughs each going into the last session of arguments, when Souter capitalized on an attorney’s mistake to take sole possession of fourth place. Following an extended question from Souter, the arguing attorney responded, “No Justice Ginsburg, there has been no waiver,” to which Souter astutely replied, “I’m Justice Souter . . . You’re very flattering.”

One other change is worth mentioning. Although the Court Reporter continues generally to use the phrase “(Laughter)” to indicate courtroom hilarity, this past March the Reporter suddenly started to vary the formulation. Following a wisecrack from Chief Justice Roberts in an argument on March 19, the transcript reads “(A little laughter.).” A week later, the courtroom apparently experienced “(Some laughter.)” after a joke from Scalia.What’s next? “(Knee-slapping guffaws)”? “(Some peeing in pants)”? The Reporter’s actions would appear to be a direct response to the study, which complained that the transcript “does not distinguish between types of laughter, either in terms of duration or intensity.”It may seem a small change, but for those who care deeply about Supreme Court humor, the importance of the Reporter’s innovation cannot be overstated.

Jay D. Wexler is a Professor of Law at Boston University. He is currently working on a First Amendment memoir-travelogue-comedy for Beacon Press tentatively entitled Free Exercise, Expensive Gas: A Church-State Road Trip.

Preferred citation: Jay D. Wexler, Laugh Track II – Still Laughin'!, 117 Yale L.J. Pocket Part 130 (2007), http://yalelawjournal.org/forum/laugh-track-ii-still-laughin.