Judging Humor

March/April 2006

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Judging Humor

Diane Thornton

The funniest Supreme Court justice did not attend Stanford. But the second- and third-funniest did.

Jay D. Wexler, an associate professor at Boston University School of Law, recently published an analysis of how frequently each justice drew laughter during oral argument in the 2004-05 term, as noted by the court reporter.

Justice Antonin Scalia instigated the highest number of laughing episodes, with 77. Justice Stephen G. Breyer, ’59, was next with 45, followed by Justice Anthony M. Kennedy, ’58, with 21. Former Chief Justice William H. Rehnquist, ’48, MA ’48, JD ’52, came in fifth, but missed more than 40 percent of oral arguments due to thyroid cancer. His fourth-place LEIPAA—Laughter Episodes Instigated Per Argument Average—of .279 may more accurately capture his wry wit. Sandra Day O’Connor, ’50, JD ’52, finished in seventh place, with a LEIPAA of .093.

Wexler, JD ’97, admits that mirth measurement is imperfect. For example, the court reporter 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,” he writes.

Drawing on Wexler’s data, Stanford determined that chuckle-inducing capacity is high for Crimson and Cardinal alumni alike. The LEIPAA of Stanford-educated justices is .317. Those who attended Harvard scored .443, boosted by Scalia’s mastery of merriment and the hefty humor of Breyer and Kennedy, who went East for law school. This bodes well for new Chief Justice John G. Roberts Jr., who earned both of his degrees from Harvard. The jury’s out on Samuel Alito, who attended Princeton and Yale. The only precedent: Yale Law School graduate Clarence Thomas, whose LEIPAA is zero.

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