The Function of Laughter at the US Supreme Court

“People Did Sometimes Stick Things in my Underwear”

by Ryan A. Malphurs, Ph.D.

Abstract

Five years have passed since The New York Times covered Professor Jay Wexler’s study of laughter in the Supreme Court. Professor Wexler’s study provided a simple tabulation of laughter notations in Supreme Court oral argument transcripts and was the first of its kind to systematically examine laughter at the Supreme Court.  This article expands on Professor Wexler’s topic by exploring the communicative function of laughter in Supreme Court oral arguments. Using first hand observations during nine weeks of Supreme Court oral arguments, audio files of 71 oral argument cases, and transcripts from 2006-2007 Supreme Court oral arguments, I argue that laughter plays an important social and communicative function in Supreme Court oral arguments that enables advocates and justices to negotiate the complex institutional, social, and intellectual barriers to obtain brief moments of equality within the Courtroom.

The architecture of the Supreme Court building conveys the serious task with which the justices are charged. The Supreme Court building in all its majesty and power most closely resembles a church, and yet the diverse legal symbolism depicted through statues of Chinese, Greek, Roman, Christian, Muslim, and Jewish figures reminds visitors that the only religion worshipped here is one of Law and Justice (Maroon and Maroon 1996).  The Courtroom’s velvet red curtains, aisles of wooden pews, and Italian marble columns, compounds visitors’ sense of  reverence, so it may seem out of place to hear a justice offering remarks about his 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 —

(Laughter.)

Justice Breyer: Or not my underwear. Whatever.  Whatever.  I was the one who did it? I don’t know.

Indeed, Justice Breyer’s description of the teasing he received as a boy drew raucous laughter and howls at the justice’s irreverent comment, subsequently embarrassing the justice (Safford Unified School District v. Redding, 56: ln1-5).

Justice Breyer’s laughter generating comment prompts laughter because of its highly personal, unexpected, and indecorous nature.  During oral arguments, to have a Supreme Court justice reveal their personal experience with objects in their underwear is wholly unexpected and shocking in its impact.  However, other justices have had their own moments of humor, albeit without embarrassing themselves to such an extent.  In Chief Justice Robert’s first term on Halloween, a light bulb exploded during the oral arguments for Central Virginia Community College v. Katz.