How funny is the Supreme Court?
The answer, naturally, requires exacting empirical research and a deep understanding of grad-school humor theory.
Ryan A. Malphurs, a litigation consultant with a doctorate in communications, has done the necessary work, analyzing every laugh in the Supreme Court term that started in 2006. His study has just been published in The Communication Law Review.
Drawing on Kant, Schopenhauer and Freud, Mr. Malphurs identified three primary theories of laughter (superiority, incongruity and relief). “Laughter enables justices and lawyers to negotiate the institutional, social and intellectual barriers that impede human communication,” he wrote, seriously.
Mr. Malphurs defended his straight-man approach in a footnote. “For some reason, studies on laughter or humor prompt readers to expect authors to adopt a humorous tone or style,” he wrote.
But the seminal study in this area, from 2005, was indeed lighthearted. It counted up how often comments from given justices were followed by the notation “(laughter)” in the official transcript, and it calculated that Justice Antonin Scalia was by that measure the funniest member of the court, followed by Justice Stephen G. Breyer.
Justice Clarence Thomas beat out Justice Ruth Bader Ginsburg for the title of least funny justice, but only by a little and aided by the fact that he never asks questions.
The older study’s author, Jay D. Wexler, a law professor at Boston University, was frank about its methodological shortcomings.
The “(laughter)” notation, he wrote, does not “distinguish between the genuine laughter brought about by truly funny or clever humor and the anxious kind of laughter that arises when one feels nervous or uncomfortable or just plain scared for the nation’s future.”
Mr. Malphurs said his goal was to remedy these flaws, noting that the Wexler study “lacked the methodological rigor and insight normally attributable to social scientific studies.”
Asked about the Malphurs study, Professor Wexler said, “I’m not sure what to think about it, but I’m pretty sure it makes me want to die.”
The new study has had respectful coverage in The Washington Post and on National Public Radio.
Still, it was not entirely clear what Mr. Malphurs added to the field aside from some big words.
Justice Scalia again turns out to be the funniest justice, and he is again followed by Justice Breyer. Chief Justice John G. Roberts Jr., who joined the court in 2005, after the Wexler study was completed, was “squarely in third place,” Mr. Malphurs found. Justice Samuel A. Alito Jr., who came onboard in 2006, gave Justice Ginsburg stiff competition for the role of least funny justice who talks.
Mr. Malphurs’s main contribution was a taxonomy of the subjects of the justices’ jokes. He found that they made fun of themselves about as often as they mocked the lawyers before them and a little more often than they teased the other justices.
The study, though new, is dated. Two more justices have since joined the court, and at least one of them, Justice Elena Kagan, showed pretty good humor potential during her confirmation hearings last summer.
Indeed, Senator Charles E. Schumer, Democrat of New York, addressed the matter head on.
“There was a recent study I read,” he said at the hearings, probably referring to Professor Wexler’s groundbreaking investigation. “Justice Scalia gets the most laughs.”
Ms. Kagan proposed a reason. “He is a funny man,” she said.
“If you get there,” Mr. Schumer responded, “and I believe you will, you’re going to give him a run for his money.”
Not so far. A not very careful review of the transcripts of the arguments this term places Justice Kagan near the bottom of the rankings, joining Justices Ginsburg, Thomas, Alito and Sonia Sotomayor. Justice Kagan has been handicapped by a large number of recusals, though, and her showing may improve as she is able to participate in more cases.
Justices Scalia and Breyer still dominate the rankings, though Chief Justice Roberts was responsible for a respectable number of laughs. The three of them account for about 80 percent of justice-generated laughter at the court.
Chief Justice Roberts has a light, witty touch, while the laughter that follows a long hypothetical question from Justice Breyer can feel like an expression of relief. Justice Scalia, by contrast, will repeat jokes mercilessly, raising questions about whether he has artificially increased his laugh count.
The rare laughs generated by Justice Ginsburg are not easy to classify. In October, she tried to clarify a lawyer’s point about how longtime employees should be treated.
“Are you then saying that these people have to be grandfathered?” she asked. She corrected herself, now using gender-neutral language: “Or grandparented?”
There was laughter, but it was not clear whether Justice Ginsburg had meant her clarification as a joke.
On the other hand, there was surely an intended sting in the best line of the term so far, from the generally dour Justice Alito. In an argument over a law barring the sale of violent video games to minors, Justice Scalia asked what the drafters of the First Amendment thought about government restrictions on depictions of violence.
“I think what Justice Scalia wants to know,” Justice Alito said, “is what James Madison thought about video games.”
“(Laughter.)”