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Is Scalia Really That Funny?

By Last Night in Little Rock, Section Supreme Court
Posted on Sat Dec 31, 2005 at 10:12:14 AM EST
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by Last Night in Little Rock

The N.Y. Times today has an article today with the amusing title: So, Guy Walks Up to the Bar, and Scalia Says..., also commented on Rawstory.com as Study: Scalia 19 times as funny as Ginsburg. Somebody thought it was important enough to do a study of the number of times that Justices somehow evoke laughter in the Supreme Court. Somebody has too much time on his hands.

Scalia has a sharp, even biting, wit, no doubt about it. I try to make it to the Supremes once a year for Fourth Amendment arguments, being a Fourth Amendment buff, so I've seen him in action. Sometimes it's funny, and sometimes it hurts.

My last argument was in 1995, and before me was Vernonia School Dist. No. 47J v. Acton, the first school drug testing case. Acton's lawyer was an earnest young man, and he was quite nervous. I do not remember the exact phrasing of the Scalia question, but the young man answered by referring to his nervousness and urinating on himself while he was standing there, and everybody thought his self-effacing comment was really funny, and it broke the ice. The kid did a good job, but he lost, but not unexpectedly: A cert. grant means an 80% likelihood of reversal.

In my case, argued immediately after that, the Arkansas Attorney General as respondent was taking an intransigent position on knock-and-announce that the police need no reasonable suspicion of exigency to enter without knocking. As best I recall:

Scalia: "General [they always refer to Attorneys General as "General"], what is your back up position on that?"

Answer: "We don't have one because we believe we are right."

Scalia: "You better start backing up."

Everybody laughed except the lawyer getting hammered. Needless to say, I thought it was hilarious because I was winning the argument (winning the case unanimously), but I didn't crack a smile. One of my rules: Never smile when the other lawyer is getting punched out.

That's Scalia. He always lets you know what he's thinking, and he likes to joust.

A lawyer friend of mine told me after getting elected judge that he got really tired of everybody suddenly finding his jokes funny and always kissing his butt. Judge's jokes are always funny because lawyers are afraid not to laugh.

Seven years earlier I was there when Scalia was newer, and he asked a question that left an opening for an answer that he didn't like. I gave him the answer he didn't like, which brought titters when he had to rephrase the question. I lost that case, but I knew I did when cert. was granted when I was the winner below. I had Marshall, Brennan, and Stevens, losing 6-3. I got to hear Marshall bellow at the then AG: "Admit it. The State was WRONG, W-R-O-N-G, wrong for what they did." Six others weren't persuaded.

I miss arguing there. It doesn't look like I'll be there again soon, either.

And no, I do not have too much time on my hands. And, the answer to the question posed in the title? Scalia thinks he is.

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    • Is Scalia Really That Funny? | 4 comments (4 topical)
    Re: Is Scalia Really That Funny? (none / 0) (#1)
    by Darryl Pearce on Sat Dec 31, 2005 at 10:41:45 AM EST
    the young man answered by referring to his nervousness and urinating on himself while he was standing there, and everybody thought his self-effacing comment was really funny, and it broke the ice.
    Inside the Supreme Court? How often does the custodial crew have to clean up after something like that...?

    Re: Is Scalia Really That Funny? (none / 0) (#2)
    by Dadler on Sat Dec 31, 2005 at 11:01:53 AM EST
    I think you hinted at the core of this: people are afraid NOT to laugh. Even if not taken literally. You have to humor the judge, stroke them, make them happy. In my several experiences in court, that kind of position of power, in such a structured setting, is NOT conducive to becoming a better comedian. Getting your a*s kissed 24/7 in public doesn't the material of comedy make, UNLESS you're a judge who's willing to talk about how full of themselves (and often sh*t) judges can tend to be -- just like the rest of us. But hey, I'm sure some people think Scalia's a riot.

    Re: Is Scalia Really That Funny? (none / 0) (#3)
    by Steven Sanderson on Sat Dec 31, 2005 at 01:20:51 PM EST
    Is Scalia Really That Funny? Sure he is, if one thinks that the dismantling of the U.S. Constitution is funny.

    Re: Is Scalia Really That Funny? (none / 0) (#4)
    by Talkleft Visitor on Sun Jan 01, 2006 at 07:09:55 PM EST
    It wasn't Justice Scalia's questioning that caused the urination comment. It was Justice Breyer. From Nina Totenberg's report of the oral arguments:
    Justice Breyer pressed lawyer Crist to pinpoint what is so intrusive about a drug test. `Medical exams all involve urinalysis,’ said the justice. `People urinate in men’s rooms all over the country. It really isn’t a terribly private thing, is it?’ Answer, `It’s not the mere act. We all urinate. That has to be conceded,’ said lawyer Crist. And then in rueful despair he added, `In fact, I might do it here.’ The courtroom erupted in laughter."
    Is Scalia Really That Funny? | 4 comments (4 topical)