Who says lawyers aren't funny?

From Today's New York Times

So, Guy Walks Up to the Bar, and Scalia Says...

Justice Antonin Scalia's wit is widely admired, and now it has been quantified. He is, a new study concludes, 19 times as funny as Justice Ruth Bader Ginsburg.

Who's the Funniest?

Transcripts of oral arguments at the United States Supreme Court have long featured the notation "[laughter]" after a successful quip from a justice or lawyer. But until October 2004, justices were not identified by name, making it impossible to construct a reliable index of judicial wit.

That has now changed, and Jay D. Wexler, a law professor at Boston University, was quick to exploit the new data to analyze the relative funniness of the justices. His study, which covers the nine-month term that began that October, has just been published in a law journal called The Green Bag.

Justice Scalia was the funniest justice, at 77 "laughing episodes." On average, he was good for slightly more than one laugh - 1.027, to be precise - per argument.
Justice Stephen G. Breyer was next, at 45 laughs. Justice Ginsburg produced but four laughs. Justice Clarence Thomas, who rarely speaks during arguments, gave rise to no laughter at all.
Of course, what passes for humor at the Supreme Court would probably not kill at the local comedy club. Consider, for instance, the golden opportunity on Halloween this year when a light bulb in the courtroom's ceiling exploded during an argument.

It takes two justices, it turns out, to screw up a light bulb joke.
"It's a trick they play on new chief justices all the time," Chief Justice John G. Roberts Jr., who joined the court that month, said of the explosion.
"[Laughter.]"
"Happy Halloween," Justice Scalia retorted.
"[Laughter.]"
And then, the kicker. "We're even more in the dark now than before," Chief Justice Roberts said.
"[Laughter.]"
On the other hand, in a January argument in a statute-of-limitations case, Justice Anthony M. Kennedy made an amusing observation about the absurdity of modern life.
"Recently I lost my luggage," Justice Kennedy said. "I had to go to the lost and found at the airline, and the lady said has my plane landed yet."
"[Laughter.]"

Professor Wexler concedes that his methodology is imperfect. The court reporters who insert the notations may, for instance, be unreliable or biased.

The simple notation "[laughter]" does not, moreover, distinguish between "a series of small chuckles" and "a joke that brought the house down." Nor, Professor Wexler said, does it separate "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."

Partisans of particular justices may raise objections as well. The raw numbers for Chief Justice William H. Rehnquist, who produced 12 laughs, understate his wit, as he missed more than 30 arguments in the term because of illness. He died in September.
Justice Ginsburg's poor showing may in part be a matter of misperception based on her grave mien.

"It is widely believed that Justice Ginsburg doesn't even laugh herself, much less make others laugh," Professor Wexler, a law clerk for her in 1998 and 1999, wrote. "I can attest that she does, in fact, laugh. Maybe not often, perhaps not loudly or with great vigor and the wild waving of arms, but laugh she does."

Justice Scalia's numbers may similarly overstate his wit, if only because the courtroom expects quips from him and may laugh at the least provocation. Also, he tried hard.

"He plays to the crowd," said Pamela S. Karlan, a Stanford law professor and Supreme Court advocate who has garnered her own share of laughter notations in the transcripts.
Sometimes, the laughter that apparently filled the courtroom is hard to comprehend. Chief Justice Roberts, for instance, got a laugh for this observation at an October argument on assisted suicide: "The relationship between the states and the federal government has changed a little since Gibbons v. Ogden," a landmark decision in 1824 about national regulation of the economy.

Lawyers get laughs sometimes, too, but it is a dangerous business. In the guidebook the court provides to lawyers preparing to argue before it, there is this stern warning: "Attempts at humor usually fall flat."

Thomas C. Goldstein, a Washington lawyer who appears before the court frequently, said humor "is a land mine."

"You have to follow the justices' lead," Mr. Goldstein said. "You have to be a straight man."
Lawyers confuse one justice with another surprisingly often, and those mix-ups are, of course, an opportunity for humor.
Last November, Sri Srinivasan, a government lawyer, apologized to Justice David H. Souter for referring to him as Justice Scalia.

"Thank you," Justice Souter said, with characteristic self-deprecation, "but apologize to him."
"[Laughter.]"

The New York Times, building on Professor Wexler's pioneering work, analyzed the available transcripts for the term that began this October. The mood under Chief Justice Roberts has brightened, the analysis found, with the average number of justice-generated laughs per argument rising to 2.9 from 2.6 the previous term.

In the current term, the Times analysis found, there has also been movement in the funniness-of-individual-justices department. Justice Breyer has taken the lead, at 28 laughs, edging out Justice Scalia, with 25. They also tied in the largest-number-of-jokes-in-a-single-argument category, each squeezing five into a single hour.

Chief Justice Roberts made a strong early showing, coming in third, with 13.
"It looks like he'll be competitive," Professor Wexler said in an interview.
Justice Clarence Thomas continues to bring up the rear, with what is shaping up to be another jokeless term for him.

A "laughter" notation is relatively common, having been awarded 1,676 times since 1979. "Mirth" has made only six appearances, all in 1987 and 1988.

Professor Wexler said the new data could be refined further, given that some justices ask more questions and thus give themselves more opportunities to provoke laughter. As with baseball batters, the true test is not in the absolute number of hits but in success divided by opportunity.
But Professor Wexler said he had decided not to pursue laughter-per-question research.

"That's not going to happen," he said. "Unless I get a grant."