Thursday, November 7, 2019
A recent study found over 9,000 instances of laughter in 6,864 United States Supreme Court arguments, from the years 1955 to 2017. There were 1.32 laughs per argument, but recent arguments showed that laughter has been increasing over time, with more than two thirds of the laughs coming from the Rehnquist and Roberts Courts.
It is a well known rule of thumb that oral advocates are generally taught to avoid humor in their arguments. The potential for offense is high and may not serve the interests of the client. So where is all this laughter coming from? From the justices of course.
Leading in laugh-getting was Justice Scalia with his snark and sarcasm, followed by the "whimsical" Justice Breyer. Justices Roberts, Gorsuch, and Kagan fell in behind.
While the study calculated the instances of laughter, the more interesting part of the study ferreted out possible purposes and motives for the jokes. Some justices are self-deprecating, like Breyer and Kagan, but others used humor in a more calculated way. In transcripts from 2010-2017, researchers found that justices most often direct their comments to lawyers who are inexperienced or that seem to be losing. It may also be no surprise that humor is frequently directed toward advocates with whom the justices disagree.
As noted, oral advocates would rarely craft a humorous argument. Arguing in the Supreme Court is serious business and most clients would have little patience for a comedy routine that falls flat. But judging by these findings, it would serve advocates well to be ready for the one-liner or not-so-hidden barb. Being able to roll with some light-hearted punches could open a door to persuasion.