Whenever Supreme Court oral argument transcripts are posted, the first thing I do is search for the “laughter” notation to find the funniest parts. But today, something funny happened. There were no laughters. Even more remarkable because Kimberly Atkins reported several possible laugh lines from Scalia, Roberts, Alito, and Breyer in Madigan v. Levin.
Will check the transcript, but sounded like Scalia was the 1st justice to get a laugh this #SCOTUS term. Roberts, Alito & Breyer also funny
— DC Dicta (@DCDicta) October 7, 2013
But no laughters were in the transcript.
The second case included a battle between Paul Clement and Tom Goldstein. Please don’t try to tell me Tommy Boy didn’t get a single laugh line?!
What could be going on here!?! Perhaps due to the furloughs, court reporters aren’t allowed to report on laughter?
The internet is already on this one…
@DCDicta @JoshMBlackman I'm blaming the new Clerk of the Court. What do we know about this guy?
— Jay Wexler (@SCOTUSHUMOR) October 7, 2013
Update: Adam Liptak tweets that Justice Breyer got a laugh line.
@JoshMBlackman @DCDicta @SCOTUSHUMOR Breyer's "he's not really
a bird, he's a fish" got a laugh. Not sure why the scandalous humor coverup
— Adam Liptak (@adamliptak) October 7, 2013
And Michelle Olson has written to Alderson Reporting to get to the bottom of this.
@JoshMBlackman I had the same thought!
— Michelle Olsen (@AppellateDaily) October 7, 2013
The internet works fast.
Update: Here is the line about the bird and fish–surely worthy of a chuckle, at least.
JUSTICE BREYER: It’s pretty universal he’s not an employee under ADEA, though he might be under GERA. You have to say yes or no, because if you’re going to say — I mean, you know, let’s either do it or not do it. If you — if you want to leave this issue in the case, it’s possible to argue we should decide this whole issue on the ground that although he’s not really a bird, he’s a fish or whatever. But I mean, this is supposed to be fairly realistic, I think, what we’re supposed to do.
Update: More from Adam Liptak on what counts as laughter in the Supreme Court, citing the cool work of Ryan Malphurs:
It turns out she is doing better than she thought. A team of researchers led by Ryan A. Malphurs, the author of “Rhetoric and Discourse in Supreme Court Oral Arguments,”listened to recordings of every argument in the term that ended last year. They found that the court reporters who insert the “[laughter]” notations into transcripts are a tough crowd and had overlooked countless instances of courtroom levity.
“We gathered substantially more, or 61 percent more, instances of humor,” the new studyconcluded.
The study’s methodology was straightforward. “We deemed something as being humorous if it elicited laughter from the audience, justices or advocates,” Mr. Malphurs and his colleagues wrote. “We captured all moments of laughter in oral arguments that we could hear ranging from chuckles to full-throated roars.”
There were “343 instances of humor,” and all of the justices turned out to be funnier than previously thought, except for Justice Clarence Thomas, who did not speak during that term.
The humor differential ranged from 26 percent for Chief Justice Roberts to an astounding 200 percent for Justice Ginsburg, whom the study called a “true comedian.” Justice Kagan improved her performance by 53 percent.