The inside of the United States Supreme Court. Courtesy photo

The year 2018 wasn’t exactly an easy year for the U.S. Supreme Court. The justices said goodbye to a longtime colleague and hello to a new one who took his seat after a bruising confirmation hearing. Still, there was some humor, injecting itself into the serious business of oral arguments. Here are some memorable moments, lightly edited for length and clarity, where laughter lightened the room.

➤➤ “Why are we here?”

Justice Sonia Sotomayor: “Even if you don’t have an expectation of privacy in the trunk, you’ve claimed an expectation of privacy in the property. And absent probable cause, there’s no right to search. So why are we here?”

Robert Loeb, Orrick, Herrington & Sutcliffe: “We agree 100 percent on that, your honor.”

Justice Ruth Bader Ginsburg: “You’re here because you lost below.”

Loeb: “We lost below.”

(Byrd v. United States)

➤➤ Let’s stipulate: “Most public servants are underpaid.”

Chief Justice John Roberts Jr.: “So the public unions do not engage in advocacy with respect to the state budget to the extent that impacts the available wages?”

David Frederick, Kellogg, Hansen, Todd, Figel & Frederick: “I wouldn’t put it quite that way. What I would say is that, of course, most public servants are underpaid, and I will stipulate to that before this body.”

(Janus v. AFSCME)

Neil Gorsuch testifies at his confirmation hearing in March 2017. Credit: Diego M. Radzinschi/ NLJ

➤➤ All rise for Grammar Court.

Justice Neil Gorsuch: “But, if we’re going to focus really carefully on the language, what do we do about the fact that that is an adverbial phrase? And you’re asking us to suggest that it modifies the noun ‘alien’ and limits the class of aliens that are involved. ‘Alien’ is a noun. Adverbs don’t usually modify nouns. They usually modify verbs. And the verb here is ‘shall take into custody.’ Now that’s the question my fifth grade grammar teacher would have, all right? And so I pose it to you.”

Cecillia Wang, American Civil Liberties Union: “Well, I think I’m a grammarian, too. The reason why, Justice Gorsuch, is that sometimes adverbial phrases do describe a noun, just as they do in this statute.”

Gorsuch: “Usually they modify the verb.”

Wang: “It wouldn’t be the first time Congress tortured grammar, but—”

Gorsuch: “This, I won’t argue with you about.”

(Nielsen v. Preap)

➤➤ You first. No, you first.

Justice Elena Kagan: “Mr. [Ted] Frank—”

­Gorsuch: “We—I’m sorry.”

Kagan: “Sorry. No, go ahead.”

Gorsuch: “Oh, please go ahead.”

Kagan: “No.”

Chief Justice Roberts: “Justice Kagan.”

Kagan: “I was going to change the subject.”

Gorsuch: “So was I. Jurisdiction?”

Kagan: “Yes.”

Gorsuch: “Go for it.”

(Frank v. Gaos)

➤➤ “With all due respect.”

Chief Justice Roberts: “I don’t understand this constant emphasis on ‘respectful.’ It doesn’t mean that you can’t disagree, right? I mean, you know, ‘with all due respect’ usually means the person’s about to say you don’t know what you’re talking about.”

Jonathan Jacobson, Wilson Sonsini Goodrich & Rosati: “Respectfully, your honor—”

(Animal Science Products v. Hebei Welcome Pharmaceuticals)

U.S. Solicitor General Noel Francisco. Credit: Diego M. Radzinschi/ ALM

➤➤ A hypothetical president.

Kagan: “General, this is an out-of-the-box kind of president in my hypothetical. And…’

Solicitor General Noel Francisco: “We don’t have those, your honor.”

(Trump v. Hawaii)

➤➤ Can you take a hint?

Justice Samuel Alito Jr. to Assistant to the Solicitor General Erica Ross: “I mean, you’re not exactly on a winning streak here in [Armed Career Criminal Act] cases. You might have gotten a hint that a majority of the court really hates ACCA and is picking it apart bit by bit by bit.”

(United States v. Stitt)

➤➤ Go ahead, try to pull this dollar from my hand.

Chief Justice Roberts: “I actually tried that, holding, since I knew this was your most important case, and I held on to a dollar bill and asked each of my law clerks to try to pull it out of my hand. And I was surprised. I mean, people think, oh, it tears easily. Well, it tears easily if you go like this, but if you’re really tugging on it—I mean, it’s—I’m not saying nobody could do it, but it requires a lot of force, more than you might think.”

Assistant Federal Public Defender Brenda Bryn: “I don’t think, your honor, that it requires a substantial degree of force.”

Alito: “Does pinching, for example, constitute physical force sufficient to activate ACCA?”

Sotomayor: “Is a pinch, an ordinary pinch—let’s not talk about an extraordinary pulling of the ears that a parent might sometimes do. Let’s talk about just a pinch [as she appeared to pinch seatmate Gorsuch]. Is that sufficient force? If we said a tap on the shoulder couldn’t be, why could a pinch be?”

(Stokeling v. United States)

➤➤ One of you is not “absolutely right.”

Breyer to South Dakota Attorney General Marty Jackley: “When I read your briefs, I thought, ‘absolutely right.”‘ And then I read through the other briefs, and I thought, ‘absolutely right.’ And you cannot both be absolutely right.”

(South Dakota v. Wayfair)

Supreme Court Justice Ruth Bader Ginsburg waves at NYU Law School on Monday, Feb. 5th, 2018. Photo credit: David Handschuh

➤➤ “Not more than hardly ever.”

Ginsburg: “Would it be fair to say that your position is not necessarily ‘never’ but not more than hardly ever?”

John Hueston, Hueston Hennigan: “Repeat the question, your honor. More than hardly?”

(Nutraceutical v. Lambert)

➤➤ That’s a “pretty beautiful” hovercraft.

Roberts to Deputy Solicitor General Edwin Kneedler: “And while you may think a hovercraft is unsightly, I mean, if you’re trying to get from point A to point B, it’s pretty beautiful.”

(Sturgeon v. Frost)

➤➤ Fundamentally wrong”?

Kagan: “So, you know, whatever Congress thought it might want to do, it decided it didn’t want to do it in the end.”

Lisa Blatt, Arnold & Porter: “No, that’s fundamentally wrong in several respects. First of all, the 1901 Act called for—”

Kagan: “Fundamentally wrong?”

Blatt: “It’s fundamentally wrong because—well, it’s—it’s factually wrong. The tribe—the Allotment Act called for—”

Kagan: “Factually and fundamentally?”

(Carpenter v. Murphy)

➤➤ One “excellent” opinion.

Roberts to Kannon Shanmugam, Williams & Connolly: “Thank you, counsel. The case is submitted. I am sure we’ll come up with an excellent opinion.”

(Helsinn Healthcare v. Teva)

 

 


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