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Taking Laughter Seriously at the Supreme Court

Tonja Jacobi & Matthew Sag 

Laughter in Supreme Court oral arguments has been misunderstood, treated as either a lighthearted distraction from the Court’s serious work, or interpreted as an equalizing force in an otherwise hierarchical environment. Examining the more than nine thousand instances of laughter witnessed at the Court since 1955, this Article shows that the Justices of the Supreme Court use courtroom humor as a tool of advocacy and a signal of their power and status. As the Justices have taken on a greater advocacy role in the modern era, they have also provoked more laughter.

The performative nature of courtroom humor is apparent from the uneven distribution of judicial jokes, jests, and jibes. The Justices overwhelmingly direct their most humorous comments at the advocates with whom they disagree, the advocates who are losing, and novice advocates. Building on prior work, we show that laughter in the courtroom is yet another aspect of judicial behavior that can be used to predict cases before Justices have even voted. Many laughs occur in response to humorous comments, but that should not distract from the serious and strategic work being done by that humor. To fully understand oral argument, Court observers would be wise to take laughter seriously.  

Elena Kagan: Why is there no speech in . . . creating a wonderful hairdo?

Kristen Waggoner: Well, it may be artistic, it may be creative, but what the Court asks when there’s —

Elena Kagan: The makeup artist?

Kristen Waggoner: No . . .

Elena Kagan: It’s called an artist. It’s the makeup artist. [LAUGHTER] 

Noel Francisco: . . . people pay very high prices for these highly sculpted cakes, not because they taste good, but because of their artistic qualities. I think the more important point

Neil Gorsuch: In fact, I have yet to have a . . . wedding cake that I would say tastes great. [LAUGHTER].

David Cole: . . . that is not necessary to decide this case, but . . . in a future case that involved physical participation in . . . a religious ceremony that an individual deeply opposed, that a court . . . might create new doctrine and draw a new line and say, no . . . . We’re going to make an exception. . . .

Stephen Breyer: How do we do that? Because, you know, we can’t have 42,000 cases, each kind of vegetable — [LAUGHTER].


When the Supreme Court addressed whether a law sanctioning a baker for his refusal to make a wedding cake for a gay couple was contrary to the First Amendment in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the courtroom erupted into laughter seven times during the extended ninety-minute oral argument. One episode was inspired by Justice Kennedy inadvertently stumbling between the words “case” and “cake.” But in all six other episodes, there was a serious point to the Justices’ quips and comments that provoked the courtroom gallery into laughter. As seen above, Justice Kagan was illustrating the potential absurdity of Petitioner’s argument that making a wedding cake was a personal statement demanding free speech protection. Kagan asked the serious question of how such claims could be limited by posing the seemingly absurd question of why hairstylists should not command the same respect. Justice Breyer made a similar point about the potentially limitless distinctions the Court would be asked to make if it ruled in favor of the baker by resorting to the hyperbole of the Court deciding “42,000 cases, each kind of vegetable.” Justice Gorsuch, in contrast, was emphasizing that wedding cakes are not made or consumed for their taste but for their symbolism and artistry, a jest that worked in Petitioner’s favor. It is unsurprising, then, that Justice Gorsuch ultimately joined the majority opinion, which, while dodging the question of whether there is an exception to antidiscrimination principles for genuinely held religious beliefs, upheld Petitioner’s claim in this case. In contrast, Justice Kagan’s concurring opinion, which Justice Breyer joined, explicitly narrowed the determination to one of discrimination by a state actor against Masterpiece and read the majority opinion as embracing the conclusion that a state law “can protect gay persons.” The way the Justices used humor in the Masterpiece Cakeshop oral argument is telling. Liberal Justices used humor to engage in a dialogue with Petitioner and express their skepticism, while conservative Justices did the same with Respondent.

This pattern raises some questions. First, is Masterpiece Cakeshop representative, or is there something special about the facts of that case (or cake?) that led to so much absurdist humor and mockery? It may well be idiosyncratic, given that the average case during the Roberts Court era has had only 2.74 instances of laughter, whereas, for instance, an argument addressing the inherently snicker producing question of nudity on television yielded twelve laughs in a sixty-minute hearing. Yet oral arguments on topics as dry as standing in tax cases or jurisdictional issues in employment discrimination law have inspired instances of laughter, albeit often at just how boring the case is. Second, is laughter a function of salience? Masterpiece Cakeshop was one of the most salient cases of the 2017 Term, pitting antidiscrimination principles directly against religious freedom claims in the newly recognized and still divisive right of same-sex couples to marry. Justices may be more engaged, and thus inspire more episodes of laughter, in salient cases; on the other hand, salient cases may generally be more somber, involving high stakes issues of fundamental rights and governmental powers. Third, does the apparently tactical use of humor as a rhetorical tool in Masterpiece Cakeshop indicate a broader trend? And if so, are judicial comments that inspire laughter a good predictor of the voting intentions of individual Justices or the Court as whole? More specifically, we may ask whether it is typical that the Justices make comments inspiring laughter primarily during the time allotted to the advocates against whom they ultimately rule, or if laughter is indicative of who will win or lose the case. If such patterns are persistent, that suggests there is important information about the outcomes of cases contained within the seemingly innocuous parenthetical notations of laughter during Supreme Court oral arguments.

In this Article, we set out to investigate these and other questions relating to the use of humor and the nature of laughter in Supreme Court oral arguments. Although humorous exchanges at the Court are often discussed in the news media as they arise, and a couple of scholars have tallied up counts to determine which Justice inspires the most laughter in a given Term, we are not aware of any serious empirical investigation into the nature of laughter at the Supreme Court until now.

In this Article, we take laughter seriously. Without doubt, the comments that induce laughter in the Supreme Court gallery are often humorous. But they are more than just humor for the sake of humor or random lapses into absurdity. When the Justices make jokes and quips, they do so with serious intent, and the humor that results often stems from the barbed or pointed nature of their remarks. Indeed, it is often the serious point wrapped within the joke that makes it humorous. That does not mean that the laughter is incidental: humor is one of the weapons in the Justices’ arsenals of rhetorical persuasion. In related work, we have shown that the Justices act more like advocates in the modern era of Supreme Court oral argument than Justices did in the past. Since the mid-1990s especially, the Justices have talked much more during oral argument, leaving less time for the advocates to make their points, and intervening predominantly in the form of statements rather than asking questions. At the same time, the “disagreement gap”— the difference between the number of words a Justice speaks to the Petitioner versus the Respondent in a given case — has become a much more reliable predictor of voting behavior on the Court. In this Article, we show that the Justices’ use of humor is part of the same historical trend: it is performative, contributing to the advocacy role that the Justices adopted during the later Rehnquist Court and have continued to use during the Roberts Court. Humor is a weapon of advocacy, and it is a particularly powerful one because the advocates are unarmed against it — not only by their formally inferior status to the Justices, but also because the rules of the Court admonish them to avoid using humor themselves.

In order to take laughter seriously, we built a database of every Supreme Court oral argument transcript from the 1955 Term to the 2017 Term and identified every episode of laughter therein. That is over nine thousand instances of laughter, in 6,864 cases, over sixty-three years. This empirical approach allows us to examine changes in humor at the Court over time. We show that in an era of an increasingly polarized Court, the Justices are significantly more likely to make laugh-inducing comments than previously, just as they have a greater tendency to engage in other forms of aggressive advocacy, such as the strategic use of interruptions. Our empirical methodology allows us to transcend the reliance on anecdote, folklore, and supposition that characterizes some earlier academic discussions of laughter. In so doing, we debunk the claim that the Justices use humor as an “equalizer” with the advocates, to foster a de facto egalitarian environment despite the structured hierarchical nature of the Court. On the contrary, we show that the Justices most often use courtroom humor when they will eventually vote against the side an advocate is representing, when an advocate is losing an argument, and when an advocate is inexperienced. The data shows that humor is used far more as a tool of advocacy and a weapon against the weak than as an equalizer or an antidote to the structured hierarchy of the Court.

There is meaningful information contained in the court reporters’ notation of when laughter occurs; information that goes far beyond assessing the relative comedic powers of the Justices. Laughter patterns tell us, for example, whether a case is likely to be decided for or against the Petitioner. With lives hinging on death penalty determinations and markets ready to fluctuate with the determination of patent and tax cases, Court observers would do well to take laughter seriously, as an indicator of likely case outcomes and as indicative of the nature of the relationships between the Justices and the advocates.

Part I establishes the foundations of our analysis: it describes the prior literature and its limits; it then presents our qualitative analysis of the last seven Terms of the Roberts Court, 2010 to 2017; it then outlines the data we use for our quantitative analysis; and finally, it develops our hypotheses. Part II tests the first set of hypotheses, examining how laughter at the Court has changed over time and investigating variability among the Justices in causing laughter. Part III tests the second set of hypotheses, examining in more detail the notion that humor is used as a weapon, rather than as an equalizer at the Court. It shows that the Justices use laughter differently against advocates making arguments that they ultimately vote for or against, against advocates who are winning versus losing the argument before the Court as a whole, and against advocates who are experienced versus inexperienced. Overall, it shows that laughter is a weapon used against the disfavored and the weak. Finally, it considers what it means to be the “funniest Justice” once the use of humor is seen as a form of advocacy. We then briefly conclude, contemplating both how Court observers should consider laughter in light of our results and also what laughter tells us predictively about cases that have not yet been decided.

— from Taking Laughter Seriously at the Supreme Court, 72 Vanderbilt Law Review 1423 (2019)