Politics

The Post-Scalia Supreme Court Is Really Not Funny

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Kevin Daley Supreme Court correspondent
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The U.S. Supreme Court post Antonin Scalia is much less amusing.

Though the duty of the high court is certainly not to entertain its observers, The Nine sometimes let fly a sharp witticism or barb at oral argument, soliciting laughter in the courtroom and note of “(laughter)” in the transcript. In this regard, none charmed the Court more than the late Justice Scalia.

Jay Wexler, law professor at Boston University School of Law, published a paper in 2005 tracking instances of (laughter) in oral argument transcripts.

“The Supreme Court may have its own police force, its own museum curator, and even its own basketball court, but unlike the courts of yore it has no Jester,” he wrote. “As a result, the responsibility of delivering humor within the hallowed halls of One First Street falls squarely on the backs of the nine Justices themselves.” (RELATED: Justice Breyer Throws Shade At Kim K During Oral Arguments)

Scalia dominated the study, leading the other justices with 77 instances of [laughter]. Justice Stephen Breyer, now a contender for hippest Supreme Court justice, was in the second position at 45 laughs. The study was so well received by the small, there but for the grace of God go I cadre of SCOTUS-enthusiasts that Wexler began to track Supreme Court humor on a regular basis. Scalia was serve happily as the Court’s laugh track until his death.

The Court’s first term without him began on Monday. Thus far the justices have heard five cases, and drawn only three instances of laughter. Chief Justice John Roberts, Justice Elena Kagan, and Breyer are each tied at one laugh each.

So far, the new lines to beat are exchanges such as:

CHIEF JUSTICE ROBERTS: I’m not interested in who the government would seek to have liable. I’m interested in what the rule is going to be.

MR. DREEBEN: I’m equating the two, Mr. Chief Justice. I’m not —

CHIEF JUSTICE ROBERTS: This Court has not equated the two. (Laughter.)

Or

JUSTICE BREYER: Gonzalez v. Crosby, to my understanding, involved a change in the AEDPA statute of limitations; is that right?

MR. KELLER: Correct.

JUSTICE BREYER: As soon as I say those words, I’m confused. (Laughter.)

Kagan may be our only hope.

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