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U.S. Supreme Court

Scalia Teases Breyer the Most, and Gets the Most Laughs, New Study Concludes

Posted Jan 18, 2011 8:37 AM CDT
By Debra Cassens Weiss

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Justice Antonin Scalia is the court’s funniest justice, and the justice he most often teases is ranked No. 2, according to a new study of laughter during oral arguments.

The study by Texas litigation consultant Ryan Malphurs categorized all the instances of laughter in the U.S. Supreme Court’s 2006-2007 term, the Washington Post reports. Most of the laughter was noted in Supreme Court transcripts, but Malphurs found a few other instances while listening to argument tapes in an attempt to divine intonation that was missing from transcripts.

Scalia was already crowned the funniest justice in a 2005 study that considered which justice drew the most laughter. He was also funniest justice in Malphurs’ study, which found Scalia made 60 statements generating laughter. Also in the top three were Justice Stephen G. Breyer, spurring 35 instances of laughter, and Chief Justice John G. Roberts Jr., with 12.

Scalia teased Breyer more than he teased any other justice. “Although it is unclear whether the statements were designed to needle Justice Breyer or just provide a friendly nudge, these two justices spar regularly evoking laughter, and occasionally tension,” Malphurs writes. He also says both justices are "masters of turning a potentially embarrassing situation into positive laughter."

In the 60 instances of laughter generated by Scalia, 20 were the results of statements directed at a lawyer’s argument, 10 toward a lawyer, nine toward himself, 10 toward others or other institutions, and 11 toward other justices. Breyer also made light of himself nine times, but it occurred proportionately more often than did Scalia's self-directed humor. The Washington Post has a chart.

Malphurs offers this instance of Breyer making fun of himself:

Justice Breyer: In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, okay? And in my experience, too, people did sometimes stick things in my underwear -- (Laughter.)

Justice Breyer: Or not my underwear. Whatever. Whatever. I was the one who did it? I don't know.

Malphurs found a total of 131 moments of laughter, and there were only three that Malphurs considered acts of aggression—all during the Bong Hits for Jesus case. Justices Anthony M. Kennedy and Scalia both made dismissive comments that provoked laughter during the arguments.

“In this case, nearly all the justices took on disapproving tones,” Malphurs writes, “and Justices Scalia and Kennedy’s humor falls in line with the disapproving tone found within most of the argument.” (The court ruled in the case that a public school could punish students who promoted illegal drug use by unfurling a banner during a school-sanctioned parade that read “Bong Hits 4 Jesus.”)

The laughter was on the whole good-natured, Malphurs says. “Justices do not use laughter to reinforce control or resistance within the courtroom,” Malphurs concludes in his study (PDF), published in the Communication Law Review. “Instead the justices’ laughter diminishes formal control and power barriers, facilitating communication amongst themselves, between the justices and advocates, and with the audience members as well.”

Updated at 2:20 p.m. on Jan. 21 to clarify that Scalia teased Breyer more than he teased any other justice.

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