For as long as there have been rigorous scientific studies of how many laughs each Supreme Court justice gets from the audience during oral argument, Justice Scalia has always come out on top. And Justice Breyer has always come out right underneath him. In the 2004-2005 term, for example, Scalia topped Breyer 77 laughs to 45. In the 2006-2007 term, Scalia topped Breyer 54-30. Well, the data are now in for the most recently completed term, 2008-2009, and once again Scalia and Breyer finished #1 and #2.
But this time around, Breyer made a real race out of it, getting 45 laughs to Scalia's 52. In other words, instead of losing by 32 laughs or 24 laughs, this time Breyer came out only 7 laughs behind.
And the race was even closer than the final numbers would suggest. Going into the term's final argument session in April, Scalia held a close 44-40 lead, when Justice Breyer made his final push for comic supremacy. In an argument held on April 20, Justice Breyer and Ken Starr were having a dialogue when Scalia cut in and asked his own question. When Starr fumbled a bit, Scalia said: "If you can't answer that, I think Justice Breyer can." At this point, Breyer saw his opening. "He doesn't actually have the right to ask me questions," Breyer said, which earned him a well-deserved "(Laughter)". 44-41.
Breyer's high point came the next morning, when he made a joke about his underwear. The case involved whether a strip search of a public school student violated the fourth amendment. There was a lot of talk at oral argument, therefore, about whether it was reasonable to assume that a student might hide illegal contraband in his/her underwear. Justice Breyer engaged the lawyer, a Mr. Wolf, in the following "(Laughter)"-inducing exchange:
Justice Breyer: It's not like you have any studies on this. But I mean, I hate to tell you, but it seems to me like a logical thing when an adolescent child has some pills or something, they know people are looking for them, they will stick them in their underwear. I'm not saying everyone would, but I mean, somebody who thinks that that's a fairly normal idea for some adolescent with some illegal drugs to think of, I don't think he's totally out to lunch, is he?
Mr. Wolf: Well--
Justice Breyer: Do you have any studies on this? I doubt it.
Mr. Wolf: No, but neither -- neither do they.
Justice Breyer: So what am I supposed to do? 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. I mean, I don't think it's beyond human experience, not beyond human experience.
"(Laughter)"? More like "(Ewwwww)."
In any event, this turned out to be Breyer's last hurrah, because as soon as the very next argument, Justice Scalia returned to his old form and made Breyer look like Joan Rivers at the Montreal comedy festival, earning six laughs in the next two arguments to Breyer's two, and then finishing off strong to best Breyer 52-45.
The other justices finished in the following order, with laughs noted in the parentheticals: Roberts (29); Souter (14); Kennedy (9); Stevens (6); Ginsburg (5); Alito (3) and Thomas (zilcho). Interestingly, the retiring Justice Souter had a particularly good year. His 14 laughs were twice as many as he got in 2006-2007. I guess he was in a particularly giggly mood last year, looking forward as he was to his new career as a hermit in the New Hampshire hills.