What’s going to happen during 3 days of arguments on health care?

Starting Monday, the Supreme Court has scheduled six hours of oral arguments over three days to consider the constitutionality of health-care reform, the most time given to a case in more than 45 years. We’re certainly in for a historic event — but it might be an entertaining one, too.

Oral arguments are always theatrical: The lawyers stand only a few feet from the justices, who loom above them on a curved bench, and they are barraged with so many questions that they often have trouble completing a sentence. The hearings are also an opportunity for the traditionally secretive Supreme Court to cut loose. In fact, the Roberts court is known as a “hot bench” — not a reference to the unusual sexiness of the justices but to the fact that eight of the nine are unusually chatty during oral arguments (Justice Clarence Thomas hasn’t uttered a word since 2006). Even though the justices rarely change their minds during oral arguments if they already have strong views about a case, the hearings can clarify their thinking, offer some lively give and take, and occasionally lead to humor.

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So, will the oral arguments over health-care reform produce some laughs? Here’s a preview of what might transpire when the commerce clause becomes a punch line.

Justice Antonin Scalia

According to a 2010 study in the Communication Law Review, Scalia is the funniest member of the court, based on how many laughs the various justices have elicited in the courtroom. But his wit sometimes has a sharp edge. In 1988, when a lawyer fumbled for the answer to a question, Scalia exclaimed, “When you find it, say ‘Bingo!’ ”

Expect some zingers from Scalia in the health-care argument, perhaps focused on the not-so-side-splitting subject of whether Congress has the authority to require people to buy health insurance as part of its power to regulate interstate commerce. Imagine, for example, the following exchange:

Solicitor General Donald Verrilli: “In 2005, Justice Scalia, you held that Congress has the power to prevent California from authorizing people to grow marijuana for their own use. Surely, the decision not to buy health insurance has a far greater impact on the economy.”

Justice Scalia: “Depends on what part of California you’re from.”

Justice Stephen Breyer

Breyer’s jokes often follow a long question identifying the hardest issue in the case. He cares about legislative history and may focus on a striking irony in the health-care law briefs: During the debate over the legislation in Congress, Republicans insisted that the mandate to buy health insurance should be considered a tax, and Democrats countered that it shouldn’t. The moment President Obama signed the bill, though, both sides rushed to court to claim the opposite: Democrats now insist that the mandate is absolutely a tax (and therefore authorized by the taxing clause of the Constitution), and Republicans are equally confident that it’s not.

This debate is also relevant to whether the court has the power to hear the case in the first place. If the mandate is a tax, according to a 1867 law, litigants may have to wait until it goes into effect in 2014 to challenge it. If Breyer can get a laugh out of the “is it a tax?” debate, he deserves to be promoted to funniest justice.