Citation: Tonja Jacobi & Matthew Sag, Taking Laughter Seriously at the Supreme Court, 72 Vanderbilt Law Review 1423 (2019)
In a nutshell:
In Taking Laughter Seriously at the Supreme Court, Tonja Jacobi and Matthew Sag argue that Supreme Court Justices use courtroom humor as a tool of advocacy and a signal of power and status: the Justices direct their laughter-getting comments disproportionately at advocates they will vote against, at advocates who are losing, and at advocates arguing their first case.
Summary
Taking Laughter Seriously at the Supreme Court is built on a database of every Supreme Court oral argument transcript from the 1955 Term through the 2017 Term: 1.7 million speech events across 6,864 cases, containing more than nine thousand recorded episodes of laughter, 6,087 of them triggered by the Justices. Earlier studies examined a single Term; this dataset tracks laughter over sixty-three years. The Rehnquist and Roberts Courts account for about two-thirds of all laughter episodes despite covering less than half of the study period, and the increase comes almost entirely from the bench: the rate of advocate-inspired laughter has stayed roughly constant since 1955, while Justice-inspired laughter per five thousand words has more than tripled. Structural break analysis places the sharpest change in the late 1980s, with a further shift after 1995, the same point at which our earlier work found the Justices becoming more active and more advocacy-oriented at oral argument generally.
The distribution of that laughter matters more than the quantity. The Justices provoke laughter far more often during the argument time of advocates they ultimately vote against, mirroring the “disagreement gap” and “interruption gap” we have documented in related work. They also joke significantly more at the expense of advocates who go on to lose the case, an effect that retains predictive power even after controlling for how many words the Justices speak, so laughter patterns can help predict case outcomes before the Justices have voted. The burden falls hardest on the inexperienced: first-time advocates draw 0.55 episodes of judicial laughter per appearance, compared to 0.19 for veterans of eleven or more arguments.
These findings refute Ryan Malphurs’s claim that the Justices use humor to equalize the courtroom hierarchy, and they complicate the annual “funniest Justice” rankings that Jay Wexler began in 2005. Justice Scalia does top the overall laughter table, followed by Justices Breyer, Roberts, and Gorsuch, but the Justices who get the most laughs are also the most one-sided in how they target them. Getting a laugh at the Court is usually an act of advocacy from the bench.
Why read this article?
The article gives readers a short introduction to the theory of laughter, covering the standard superiority, incongruity, and relief theories along with less familiar accounts such as inferiority and punctuation theory, each illustrated with transcript excerpts from actual arguments. It also contains a qualitative taxonomy based on reading all 1,061 Justice-attributed laughter episodes from the 2010 through 2017 Terms, which captures the comic styles of individual Justices: Justice Breyer’s self-deprecation and absurdism, Justice Scalia’s sarcasm, Chief Justice Roberts’s procedural quips.
Although the analysis rests on multivariate regression and structural break tests, the results are presented graphically, so readers can assess the evidence without any statistical training; the regression details are confined to footnotes and a statistical appendix. Court watchers also get a practical payoff: the laughter notations in argument transcripts contain usable information about how cases are likely to come out.
Further Reading
Tonja Jacobi & Dylan Schweers, Justice, Interrupted: The Effect of Gender, Ideology and Seniority at Supreme Court Oral Arguments, 103 Virginia Law Review 1379 (2017) – Documents how interruptions at oral argument track gender, ideology, and seniority: female Justices are interrupted at disproportionate rates by their male colleagues and by male advocates.
Jay D. Wexler, Laugh Track, 9 Green Bag 2d 59 (2005) – The first study to count the laughter notations in Supreme Court transcripts, ranking the Justices of the 2004 Term by “relative comic ability” and starting the funniest-Justice genre to which Taking Laughter Seriously responds.
Ryan A. Malphurs, “People Did Sometimes Stick Things in My Underwear”: The Function of Laughter at the U.S. Supreme Court, 10 Communication Law Review 48 (2010) – Applies the superiority, incongruity, and relief theories of laughter to the 2006 Term and concludes that the Justices use humor to reduce power barriers between themselves and advocates, the equalization thesis this article tests and rejects.
Siyu Li & Tom Pryor, Humor and Persuasion: The Effects of Laughter During US Supreme Court’s Oral Arguments, 42 Law & Policy 162 (2020) – An empirical study of the 1986 to 1993 Terms finding that the side provoking more laughter is more likely to win individual Justices’ votes.
Richard L. Hasen, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption (Yale University Press 2018) – A study of Justice Scalia’s jurisprudence and public persona that examines, among other things, his caustic humor from the bench and how it sat with his claims of an impersonal, objective interpretive method.