(Photo: Diego M. Radzinschi/ALM)
Laughter in U.S. Supreme Court arguments is usually not of the belly-shaking kind, but more of the quick quip or self-deprecating moment.
In 2016, the court, as several justices said, was a “grayer place” partly because of the absence of the quickest quipper on the bench, the late Justice Antonin Scalia.
But there were some notable moments.
On March 1, during arguments in a criminal law case, Justice Elena Kagan was questioning Curtis Cannon, an assistant to the solicitor general, when the courtroom went dark. The audience gasped.
Chief justice John Roberts Jr. interjected, “I knew we should have paid that bill!”
Veteran high court litigator Noel Francisco of Jones Day was in full swing in his argument in McDonnell v. United States in April when Justice Ruth Bader Ginsburg posed a question. Francisco, in response, addressed Ginsburg as “Justice O’Connor.”
“That hasn’t happened in quite some time,” said Ginsburg to the abashed Francisco. The lawyer offered up: “Justice Ginsburg, I am very, very, very sorry. Justice Ginsburg, my apologies.”
Justice Stephen Breyer retained the title for the most entertaining—and usually longest—hypotheticals in oral arguments. In 2016, he managed to work into his questions the legendary pirate Jean LaFitte and his gold treasure; the planet Mars; the philosophy of Ruritanianism; and lunch with a glass of Chateau Lafite Rothschild. He also revealed: “All I know about contracts came from Black Jack Dawson, my contracts teacher.”
Here are some other memorable and laugh-provoking moments, beginning with the incomparable Scalia, who could tie a colleague up in knots within minutes.
‘We need to involve counsel in the dialogue’
Puerto Rico v. Sanchez Valle, argued on Jan. 13
Breyer: The UN said that Puerto Rico has been invested with the attributes of political sovereignty, which clearly identify the status of self-government attained by the Puerto Rican people.
Scalia: Who said this? This is the UN?
Breyer: This is what we told the UN. We told the UN that. And on the basis of that—
Scalia: Who—who is ‘we?’
Breyer: It’s—what it says here—
Scalia: Who’s we?
Breyer: It consists of the president of the United States.
Scalia: The president said that?
Breyer: Or his delegate. His delegate.
Roberts: We need to involve counsel in the dialogue.
Breyer: I do—not everyone does—happen to think that what we tell the UN to get it removed from the colony status bears some consideration. I grant you not everyone agrees with that, but that’s my view of it. All right. And I guess I—all right. Forget it.
‘Tell me the imperfect way’
Sturgeon v. Frost, argued on Jan. 20
Kagan: Because I understand why Congress might have wanted to distinguish between, like, the Clean Air Act and park statutes. But putting the word “solely” in, I got to say, does not do that for me.
Matthew Findley (Ashburn & Mason): It may not have been the perfect way for Congress to go about and do it, but that’s—
Kagan: Well, tell me the imperfect way.
Findley: Well, ‘solely.’
Kagan: Well, no.
‘I think she thought it was a big deal’
Nebraska v. Parker, argued on Jan. 20
Scalia: I thought Sherrill was a big deal.
Paul Clement (Kirkland & Ellis): Well, I think—I think—
Scalia: Justice Ginsburg wrote it. I think she thought it was a big deal.
Clement: I’m not here to tell you it’s not a big deal.
‘Hard sentence to write’
United States v. Texas, argued on April 18
Roberts: Now that must have been a hard sentence to write, I mean, they’re—they’re lawfully present and yet, they’re present in violation of the law.
Solicitor General Donald Verrilli: I actually had no trouble writing it, Mr. Chief Justice.
McDonnell v. United States, argued on April 27
Roberts: One, there’s an extraordinary document in this case, and that’s the amicus brief filed by former White House counsel to President Obama, former White House counsel to President George W. Bush, former White House counsel to President Clinton, former White House counsel to George H.W. Bush, former White House counsel to President Reagan. And they say, quoting their brief, that “if this decision is upheld, it will cripple the ability of elected officials to fulfill their role in our representative democracy.” Now, I think it’s extraordinary that those people agree on anything.
McDonnell v. United States, argued on April 27
Deputy Solicitor General Michael Dreeben: Well, I don’t think you and I agree on where the line should be, Justice Breyer. So I can’t write language that is going to satisfy you. You weren’t even satisfied with petitioner’s language, which requires that there be influence on some other governmental decision. You suggested you thought that was too broad.
Breyer: No, no, no. Well, yeah, yeah, yeah, yeah.
Manuel v. Joliet, argued on Oct. 5
Sotomayor: Am I understanding your argument correctly?
Stanley Eisenhammer (Hodges, Loizzi, Eisenhammer, Rodick & Kohn): Yes. You are, perfectly. I wish I could take credit for that.
Manrique v. United States, argued on Oct. 11
Paul Rashkind (public defender): I submit that a decision that isn’t final, that isn’t on point, and makes its reference by a footnote, is not telling the lawyers how to proceed on an appeal.
Roberts: Sorry to interrupt you. What is the citation for the case that’s not relevant?
‘Were I from Mars’
NLRB v. SW General Inc., argued on Nov. 7
Breyer: Have I got the statute right?
Shay Dvoretzky (Jones Day): Yes, your honor.
Breyer: OK. I would just wonder: Were I from Mars, what’s the point of such a statute?
‘Don’t tell us we’re not working hard enough’
Lightfoot v. Cendant Mortgage, argued on Nov. 8
Roberts: Your friend on the other side scares me when he says there are 60,000 cases that are going to be added to the federal docket. Do you have an answer to that?
Brian Brooks (Fannie Mae): I have many answers to that, Your honor, but the easiest answer is this. The easiest answer is no—
Kennedy: Don’t tell us we’re not working hard enough.
Brooks: I do recall, Justice Kennedy, that once upon a time, the court took 150 cases a year. Maybe foreclosures could be among them.
Kennedy: They were easier cases.
Brooks: Perhaps I should sit down.
Lynch v. Morales-Santana, argued on Nov. 9
Justice Kennedy to Stephen Broome (Quinn Emanuel Urquhart & Sullivan): Justice Kagan’s suggestion, Congress apparently should—should have been aware of this after our Flores-Villar [decision], but they were soporific.