Bad jokes from judges? Are you kidding me?
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Imagine that you and your law partner, along with two opposition lawyers, are in an appellate courtroom for an appeal brought by a cake shop. As expected, all four of you are dressed in conservative business suits. In responding to a question from the bench, one of the other lawyers utters this one-liner: “I have yet to have a … a wedding cake that I would say tastes great.”
Would you laugh? Of course not. You wouldn’t even smile. The other two lawyers wouldn’t either. Why? Because it’s not funny.
Now change just one detail of the scenario. Assume that everything is the same—same case, same one-liner, same emphasis, same timing—but instead of a business suit, the speaker is wearing a black robe. Would you laugh? Of course, you would. All the lawyers would. Why? Because now it’s funny—even hilarious. You can’t stop laughing. If you were in the process of taking a drink, water might come out of your nose.
The first scenario is, of course, hypothetical, but there’s no denying the realism of the reaction—make that nonreaction—to the lawyer’s one-liner. The second scenario, though, is not hypothetical. It really happened. The black-robed man who uttered the side-splitting zinger is a U.S. Supreme Court justice. The case is Masterpiece Cakeshop v. Colorado Civil Rights Commission (see transcript of oral arguments, page 40).
The justice, Neil Gorsuch, got a big laugh for his one-liner. His joke is considered so noteworthy that it’s quoted on the opening page of a 57-page treatise on humor in the Supreme Court, Taking Laughter Seriously at the Supreme Court, by professors Tonja Jacobi of Northwestern Pritzker School of Law and Matthew Sag of Loyola University of Chicago Law School.
I’m not surprised at the reaction to Gorsuch’s comment. I’ve noticed the phenomenon throughout my half-century at the bar. You probably have too. I call it the black-robe effect: You’ve known a lawyer for years. You know for a fact that he’s not funny. Then he has a job change that requires him to wear a black robe at work. And voila, he’s a veritable Jerry Seinfeld. Suddenly, his jokes are hilarious—even the same ones that triggered groans when he wore a business suit.
The black robe serves as a kind of cape of good humor; it generates a humor charge. And just as a smartphone holds a charge even when separated from a power source, the robe’s humor charge lasts for a while when the robe is taken off. In my observation, the charge lasts for around one month. So even when the robe is taken off for an evening, weekend or vacation, its owner’s jokes will continue to be hilarious—at least to other lawyers.
But even a fully charged battery eventually runs out of juice. The robe’s humor charge can’t last forever. Time and again a lawyer who retires the black robe discovers that the gift for humor somehow got packed away with the robe. The lawyer is now no funnier than before first donning the robe.
This change can be disconcerting to someone who has worn a black robe for a long time. A former partner of mine—he asked that I not give his name—was so puzzled in the first months after retiring his robe that he asked the state bar to investigate why bar members had suddenly lost all sense of humor. His evidence? Why, lawyers who had long laughed at his jokes no longer even smiled. Sometimes, they interrupted him to blurt the punchline before he could get to it. He titled his article on retirement from the bench, “The Day the Laughter Died.”
My advice to any lawyer who enjoys making other lawyers laugh: Get a job that requires you to wear a black robe. The black robe is a cape of good humor that imparts the power to be hilarious. But bear in mind that the power, like the robe, can’t last forever.
Norman Tabler is a retired lawyer in Indianapolis. His practice was focused on health law. He is on the editorial advisory boards of the ABA Health Law Section’s the Health Lawyer and the ABA Senior Lawyers Division’s Voice of Experience (for which he contributes a monthly column, Adventures in the Law). He writes and records a monthly podcast, The Lighter Side of Health Law, for American Health Lawyers Association Weekly.
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