Is Scalia Really That Funny?
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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