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Tuesday, December 01, 2015

Supreme Court [Laughter] Update

Much like Toni Basil of "Mickey" fame or the guys who sang the "Pac-Man Fever" song, I too plan on milking my one-hit wonder for all its worth.  And that means talking about which Justices get the most [laughter] at oral argument.  I'm not talking about the most laughs, mind you, much less which Justices are the funniest--simply which ones get the audience [laughing] enough for the Court Reporter to note [laughter] in the transcript.  For those of you who do not follow me @SCOTUSHUMOR (why is that again?), you may not know that last year's results were much like all of the other years' results, meaning that Justice Scalia topped the charts, followed closely by Justice Breyer.  Interestingly, however, Justice Kagan, by getting two [laughs] on the very last day of argument, tied the Chief Justice for third place in the standings.  (The circumstances there were fascinating--the arguing lawyer called Justice Kagan "Scalia," to which she responded: "He's Scalia" which got one [laughter], bringing her within one of the Chief.  But did she stop there, like someone who doesn't know how to bring the [laughter]? Oh, no.  Instead, she followed up with, "We're not often confused," which is what got her the tying miracle [laughter] that sent us Court [laughter] watchers into what can only be described as a [frenzy]).  In any event, the current standings, through yesterday's arguments, are as follows: Scalia 14, Breyer 11, the Chief 7, Kagan 3, Kennedy 2, Sotomayor 1, Alito 1, Ginsburg 0, Thomas 0.  These results, of course, as always, are subject to the caveat that I perform my calculations in a haphazard and slipshod manner and therefore should not be relied upon by anyone for any purpose whatsoever.

I am looking forward to my first Prawfs guest stint in a couple of years, in which I plan to talk about this book and this book and this book and also my new pet hedgehog.

Posted by Jay Wexler on December 1, 2015 at 11:44 AM in Jay Wexler | Permalink


What does Cocoa Puff like to eat? (If you say cereal, is s/he a cannibal?)

Posted by: Goober | Dec 2, 2015 4:15:04 PM

"this meme that Scalia has become a conservative William Douglas is one of the most ridiculous inventions of the liberal legal media/blogosphere I've ever seen"

I don't quite know what this even means. It is not some sort of "invention" that Scalia quite often (not just occasionally as to not be really notable) in oral arguments, opinions and public remarks toss out talk radio like comments. Other times he doesn't go that route, but in effect plays to the audience, sometimes is a somewhat snide way, sometimes not.

This sort of thing might amuse RBG, but it is something even those who ideologically agree with him overall find problematic. Your "maybe two" or "ridiculous invention" comment is imho risible on some level. As if I'm exaggerating or something.

The tragic thing is that sure he ALSO is smart though on that level I think Alito (who I'm ideologically not a great fan of) manages to be very sharp without his schtick (and darn, if you don't think that word should apply to Scalia, I dissent) though Alito can be sarcastic at times.

Yes, Breyer regularly has his at times rambling hypos. But, "professor" schtick is geared to trying to tease out legal principles. The nutritional value of Scalia's schtick is somewhat less clear to me though a bit of rough honesty is valuable to some degree.

Posted by: Joe | Dec 1, 2015 11:48:44 PM

The difference is that (accepting your descriptions of their "schticks") Breyer's always doing the goofy professor schtick, while Scalia asks maybe two "talk radio" questions each in five or so headliner cases a year, while the rest of the time he's one of the three or so sharpest questioners on the Court (him, Kagan, Alito). Of course, it's hard to ask anything remotely resembling a "talk radio" question in a case about securities jurisdiction or equitable tolling (today's arguments, and fairly typical fare for the Court), but this meme that Scalia has become a conservative William Douglas is one of the most ridiculous inventions of the liberal legal media/blogosphere I've ever seen.

Posted by: Asher Steinberg | Dec 1, 2015 8:22:39 PM

Breyer's absent minded professor schtick is better imho than Scalia's talk radio blowhard schtick.

Posted by: Joe | Dec 1, 2015 7:44:52 PM

The hedgehog's name is Cocoa Puff.

Posted by: Jay Wexler | Dec 1, 2015 7:23:40 PM

Again with the hostility to Breyer as questioner! The at/with distinction is difficult to draw and seems to largely depend, now that I think about it, largely on the audience's perception about the intent of the object of laughter (if they think he's trying to be funny, it's "with," if they don't, it's "at"), but my sense is that Breyer often posits hypotheticals which are perceived to be (and usually are) knowingly outlandish, and that he gets laughs on that basis. You have to recognize, also, that the audience is largely comprised of practitioners before the Court who aren't going to laugh "at" things the Justices say, even if they find them unintentionally risible.

Posted by: Asher Steinberg | Dec 1, 2015 3:37:24 PM

How much of Breyer's laughter is directed at him (rather than with or near him) for his rambling non-sequiters, asides, and tangents and occasional acknowledgement that he has no idea what he's talking about in asking the question?

Posted by: Howard Wasserman | Dec 1, 2015 1:07:54 PM

What's his / her name? (The hedgehog, that is.)

Posted by: Goober | Dec 1, 2015 12:39:30 PM

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