The morning and afternoon sessions of the Supreme Court's hearing on the constitutionality of Obamacare are done. The morning transcript is here and the afternoon transcript is here. For reasons that should be obvious given my last post, I will not predict which side won.
We will, however, continue our coverage over whether Justice Thomas spoke at the hearing (he did not) and whether there were any laughs at the hearing (there were). More on that after the break.
It seems fair to say that by the third day of oral argument, the justices were getting a little giddy (second definition). At Monday's argument there were two jokes that got laughs. On Tuesday, there were four jokes that got laughs. Today's hearings had 20 incidents of laughter (and at least one failed joke) for a 500% increase in jokes. In fact, there were so many jokes that Chief Justice Roberts told everyone that there had been "enough frivolity." (Page 32 of the afternoon transcript).
How did so many laughs happen? Things got happy quickly during the morning session when on page 10 Justice Scalia made a joke about the "constitutional proscription of venality." This is a statment that I am pretty sure no one has ever laughed at before. Anway, Paul Clement, who is arguing against Obamacare, got in on the action by making a statement about Obamacare being easy to pass on page 26. Although, I am not sure Mr. Clement intended this to be a joke given his statement "you can laugh at me if you want" after the laughter is recorded. I assume that Mr. Clement is addressing the justices and not the folks watching the argument. On page 38, Justice Scalia makes a joke about how his having to read the entire Obamacare statute would be a violation of the Eighth Amendment and immediately follows that up with a joke about how the law clerks are the ones that will have to do the reading. On page 39, Justice Kagen makes a joke about how the only reading Justice Scalia's clerks have to do is the text of the statute. You know, because Justice Scalia does not care about legislative history--or something like that. On page 40, Justice Scalia gets a laugh for stressing that he does not care if his law clerks have to read the statute, he cares if he has to read it.
Justice Breyer, perhaps unintentionally, gets in the act on page 46 by suggesting that the lawyers arguing the case might agree on some things. Justice Scalia makes a follow up joke about having a conference committee meeting after the hearing on page 47. Things settle down briefly but then H. Bartow Farr, the lawyer the Supreme Court appointed to argue that the individual mandate is severable, made a joke about the way Justice Kennedy rephrased Mr. Farr's argument. Justice Kennedy ends the morning's humor by making a joke about "real congress or a hypothetical congress" on page 78.
During the afternoon session, Justice Breyer starts things off by making a joke about whether things he says are questions or arguments on page 17. On page 21, Justice Scalia makes a joke about how all Republican Governors want Obamacare overturned and no Democratic governors want it overturned. Justice Scalia then makes a joke about how long it is taking Paul Clement to make his second and third points on page 26. Chief Justice Roberts gets into the act on page 30 by joking that Justice Scalia does not clear all his questions with the chief.
Things get somewhat weird on pages 30-32. In what may be a misguided effort to show that the Supreme Court justices and practitioners are not behind the times, Justices Scalia and Kennedy with the help of Paul Clement make several jokes based on a routine first done by Jack Benny in 1948. Specifically, the justices improvise on how the phrase "your money or your life" is coercive but the phrase "your money or your wife" is not coercive. The wife/life distinction may also be an homage to Henny Youngman. Some might suggest that referring to long-dead comedians who were actually part of Vaudeville is not really keeping one's finger on the pulse of modern America. Justice Sotomayer tries to get into the act on page 32 but her comment does not get a "laughter" on the transcript. The jokes are too much for Chief Justice Roberts, who literally says "that's enough frivolity for awhile." Maybe the Chief Justice is more of a Milton Berle fan.
In any event, "awhile" turns out to mean four pages of transcript as Mr. Clement gets a laugh on page 36 about changing the state on whose behalf he is making an argument. Justice Scalia gets a laugh on page 44 while he is helping Solicitor General Verrilli out of a jam. General Verrilli close things the laughs out with a sarcastic "lucky me" on page 69 when he is informed that he has fifteen minutes remaining on his argument.
Our final laugh tally (not counting the laughs the attorneys got):
Justice Thomas: 0;
Justice Alito: 0;
Justice Ginsberg: 0;
Justice Sotomayer: 0 (although she might have gotten one during the Jack Benny exchange, it's hard to tell);
Chief Justice Roberts: 1;
Justice Kagen: 2;
Justice Breyer: 3;
Justice Kennedy: 3; and
Justice Scalia: 13.
What does this laughter analysis tell us? Given some of the easy laughs that the justices got, it tells me that Justices Alito, Ginsberg, and Thomas aren't even trying to be funny. If anyone thinks that the incidents of laughter tell us which side won, I would say that laughter is probably about as good a basis for making a prediction as the questions the lawyers asked.