By Robert Barnes Robert Barnes
Monday, January 17, 2011; A13
Dear lawyers: Supreme Court justices are not laughing at you. They are laughing with you.
Yes, they are your superiors in every way. But a new study of laughter during the court's oral arguments finds that the comments from the justices that draw chuckles and guffaws are not aimed at ridiculing the advocates standing before them.
Indeed, twice as often, such comments are directed at the justices themselves - even the bons mots tossed from Justice Antonin Scalia, identified in the new study as both the funniest and grouchiest of the nine.
"Their laughter," wrote author Ryan Malphurs, "was more respectful and good natured than aggressive and hostile."
The very idea of laughter at the Supreme Court seems an oxymoron; the court is nothing if not gravely, stiflingly serious.
But laughter frequently marks the proceedings, perking up those who have grown drowsy during interminable discussions of subsections of federal law and altering the dynamics of the courtroom.
Still, nothing is more perishable than what passes for humor at the court. You really have to have been there. To wit, from the transcripts:
Justice Breyer: So you're saying that if the government has the most amazing, let's - I'm trying to think of something more amazing than what I just thought of."
Those notations of "[Laughter]" have now formed the basis of two studies of the court. In 2005, Boston University law professor Jay Wexler counted the number of times "[Laughter]" was noted in the court's transcripts, attributed the funny to whichever justice's comments preceded it, and declared Scalia the court's funniest justice.
A particularly clever writer on a particularly slow news day - New Year's Eve 2005 - brought Wexler fame by getting his study on the front page of the New York Times.
Malphurs has built upon what Wexler has jokingly described on his blog as his "Nobel Prize-winning monograph" by attempting to categorize the laughter-inducing comments.
The Texas litigation consultant studied all the notations of laughter during the court's 2006-2007 term, and discovered a few more himself while listening to tapes.
He found that fewer than half the comments were directed to the lawyer in front of the justices, or even to the argument he or she was making.
The rest were self-referential, or about the court, or about some third party, such as Congress or government in general.
In scholarly fashion, Malphurs - who studied the court for his communications dissertation at Texas A&M - looked for deeper meaning:
"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."
Now might be the time to acknowledge that Malphurs may be writing about laughter, but his approach is strictly academic. He warns in Footnote 3 of his article for the current issue of Communication Law Review: "So for those readers expecting humor in this article, turn back now."
That said, the title of the study is " 'People Did Sometimes Stick Things in My Underwear': The Function of Laughter at the U.S. Supreme Court."
The title reinforces the often unintentional nature of laughter at the court. (Also, "I couldn't pass up that quote," Malphurs said.)
It is from an inexplicable tangle of words from Breyer in a 2009 oral argument about the strip search of a teenage girl, in which the justice was attempting to show that perhaps it was not unusual for children at school to be seen in their underwear.
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 -
Justice Breyer: Or not my underwear. Whatever. Whatever. I was the one who did it? I don't know.
For such reasons, Malphurs stuck to analyzing instances of laughter rather than trying to decide whether a justice was attempting to be humorous.
It's no surprise that the justice who does try, Scalia, was the runaway winner in both Wexler's and Malphurs's studies; Breyer was second, and the ever-serious Justice Ruth Bader Ginsburg brought up the rear.
Obviously, Justice Clarence Thomas, who does not ask questions during oral arguments, was a non-starter.
Malphurs's work was completed before Justices Sonia Sotomayor and Elena Kagan joined the bench. Both have been active questioners during argument, but neither has shown a propensity to go for the funny bone.
Malphurs also found that laughter at the Supreme Court is something best left to the justices.
While he found 131 incidents of laughter following a comment from the bench, there were only 21 following a comment from a lawyer arguing his case.
As the court's "guide for counsel" advises: "Attempts at humor usually fall flat."