As we did with the Obamacare oral arguments, the Gillette-Torvik blog has the final tally on who got the most laughs during the two days of Supreme Court oral argument on the same-sex marriage cases.
In Tuesday's oral argument, which you can read here, the first laughs of the day went to Charles J. Cooper, the lawyer arguing against same-sex marriage. Unfortunately, people appear to have been laughing at Mr. Cooper rather than with him. On page 24 of the transcript, Mr. Cooper is asked by Justice Kagan about infertile couples and Mr. Cooper responds in part by saying "the parties to the couples are infertile" and people start laughing. On the same page Justice Kagan gets a laugh by saying that "not a lot of children are coming out of that marriage" in reference to a marriage between people over the age of 55. On the next page Justice Scalia horns in on the laughing about fertility action by suggesting that marriage licensing forms ask the applicants whether they are fertile. People laughed because nothing is funnier than intrusive questions by the government. On the same page Justice Scalia makes a joke about the late Strom Thurmond fathering a child at 73. UPDATE: As Mr. Torvik points out in the comments, my characterization of this joke is a little off.
I first heard a joke about Strom Thurmond fathering a child at 73 on the Barney Miller show. Given that Barney Miller was cancelled in 1982, the jokes about Senator Thurmond's fertility are over 30 years old. If someone were to suggest that lawyers (and I assume most of the audience is lawyers) laughing at a 30-year-old joke made by judge (or justice) is a way of kissing up to that judge, I would not argue with them.
On page 28, Chief Justice Roberts and Theodore Olson combine to get laughs at a joke about Olson trying not to discuss the merits of the appeal when the questiosn are about whether than the standing issue. On page 30, Mr. Olson also gets a laugh for making a joke about whether the Governor of California should have appointed independent counsel to argue on behalf of Prop 8. I'll submit that this "joke" would not get laughs anywhere else but the Supreme Court
On page 38, Justice Scalia gets a laugh by telling Mr. Olson not to answer a question with a question. University of Minnesota professor Dale Carpenter told MinnPost how Mr. Olson should have avoided that faux pas here.
On page 47, Justice Kennedy gets a laugh by making a joke about his metaphor of "uncharted waters" is "a wonderful destination." The laughter continues on page 48 when Chief Justice Roberts gets a laugh for telling the Solicitor General that he also has to start with the jurisdictional (i.e., standing) argument. A total of 8 incidents of laughter in a 68-page transcript. By way of comparison, Justice Scalia got 13 laughs by himself at the Obamacare oral arguments.
Wednesday, Justice Kennedy got the first laugh by talking about "intellectual whiplash" at page 49 of the transcript. Justice Breyer got the next laugh on page 64 by stating that he could make up examples all day. Justice Breyer also gets a laugh on page 65 for being somewhat confused in his examples. On page 71, Justice Ginsberg gets a laugh for comparing marriage to milk and suggesting that heterosexual marriage is "full milk marriage" but same-sex marriage is "skim milk marriage."
Justice Scalia does not get a laugh until page 97 of the transcript when he says he does not care if it "would work" for the federal government to have a different definition of marriage than the states (he only cares if there is a federalism problem with differing definitions). I assume the joke was in the delivery as it doesn't read funny in the transcript. Maybe Justice Scalia made his eyes bug out like Marty Feldman when he said it. The laughter ends on page 103 with Justice Breyer making a joke about how Roberta Kaplan answered a question inartfully.
The final laugh tally (not counting the laughs the attorneys got):
Justice Thomas: 0;
Justice Alito: 0;
Justice Ginsberg: 1;
Justice Sotomayer: 0;
Chief Justice Roberts: 1.5 (he had help from Mr. Olson on one so I counted that as a half a laugh);
Justice Kagen: 2;
Justice Breyer: 3;
Justice Kennedy: 2; and
Justice Scalia: 3.
12.5 justice jokes at the same-sex marriage oral argument is slightly more than half the 22 justice jokes at the Obamacare oral arguments. Justice Breyer matched his total laughs and Chief Justice Roberts exceeded his total. Justice Scalia got ten less laughs.
Is there a conclusion one can draw from this laugh differential? If reports about Obamacare are to be believed, at the oral argument Justice Scalia thought he was on the side of the majority. Here, however, Justice Scalia think he is on the side of the dissent. Perhaps it is harder to make jokes when you think you are going to lose. In any event, I suspect predicting case outcomes based on the number of jokes a justice makes at oral argument is probably as valid as any other way to predict outcomes.