The funniest justice

JUSTICE GORSUCH: So you have a dog in the hunt on the scope of the discovery rule —

MR. EARNHARDT: Well —

JUSTICE GORSUCH: — but not on whether there is a discovery rule?

MR. EARNHARDT: Well, no, I —

JUSTICE GORSUCH: Is that what you’re saying?

MR. EARNHARDT:  No, I’m saying —

JUSTICE GORSUCH: Where is this dog? (Laughter.)

The Supreme Court’s oral arguments are, at their core, exercises in advanced legal reasoning – disputes over constitutional boundaries, statutory ambiguities, and the very structure of American governance. Yet amid the seriousness of the cases argued, oral arguments can include moments of levity. Justices will throw in a one-liner or well-timed quip that prompts guffaws – sometimes at their own expense, sometimes at an advocate’s, and sometimes just because the moment calls for it.

Now that the Supreme Court’s new term is about to begin, we thought it might be a good time to (temporarily) abandon the more serious side of things and dig into two questions: First, who exactly is the funniest justice? And second, what kind of humor do the justices employ?

Answering these questions not only provides insight into the nature of the people who sit on the bench, but also helps to shed some light on what can be a rather opaque institution. And, of course, it’s also just plain entertaining. 

Past laughs

As Justice Samuel Alito has said, “there are some people who have nothing better to do than count Supreme Court laughs.”

And indeed, quantifying humor at the Supreme Court is not a novel endeavor. Legal scholars – who have acknowledged that they have some free time on their hands – have, in terms past, pored over the moments marked unceremoniously as “(Laughter.)” on argument transcripts.

The OG was law professor Jay Wexler, who provided an analysis for The Green Bag, which was then picked up by New York Times reporter Adam Liptak on what Wexler surmised to be “a light news day.” Five years later, in 2011, Liptak covered a similar study by Ryan Malphurs, who criticized Wexler’s methodology. (That said, both still found Justice Antonin Scalia to be the funniest justice on the court at the time.)  

Over time, more studies followed. In 2019, law professors Tonja Jacobi and Matthew Sag published “Taking Laughter Seriously at the Supreme Court,” an analysis for the Vanderbilt Law Review of over 9,000 occasions between 1955 and 2017 in which the courtroom gallery laughed. Among other things, the authors found that the justices, as opposed to the advocates, supplied around 68% of the humor.

More recently, a 2020 study by Siyu Li and Tom Pryor in Law & Policy added that attorneys who elicit laughter may gain votes, influenced by case complexity and argument strength. In the authors’ words: “[T]he effect of laughter is conditional—it exerts a heightened persuasive power on ideologically congruent justices, in noncomplex cases, and when the legal argumentation is of higher quality.” Or something.

So who is funny now?

Of course, since 2020, things have changed – first and foremost being the court’s dynamics.

Perhaps most notably, the comedian of much of the Roberts era – Justice Stephen Breyer – left the court in 2022. Known for his lengthy hypotheticals, Breyer also had a gift for using comedy, sometimes unintentionally, to test the boundaries of legal reasoning. Some hypotheticals, for. example, involved “tomatoes that are going to have genomes in them that could, at some point, lead to tomato children that will eventually affect Boston,” and futuristic administrative inspections of private spaceships (though Breyer clarified that “[t]hey had no spaceships at common law”).

But, more importantly, who is the reigning comedic champion today?

To figure this out, I reviewed each oral argument transcript from the 2022-23 through 2024-25 terms (the first full three years of the Roberts court with Justice Ketanji Brown Jackson and without Breyer), counting and categorizing each of the 503 instances of “Laughter” based on the preceding justice’s remark.

This yielded a clear winner: Justice Neil Gorsuch, with an impressive 135 laughs. He was followed by Justice Elena Kagan with 93 and Chief Justice John Roberts with 89 – somewhat confirming Sen. Chuck Schumer’s prediction during Kagan’s nomination hearings that she would “give [Scalia] a run for his money” in terms of laughs.  

As for the rest of them: Justice Brett Kavanaugh (57) and Alito (50) trailed behind, while Justice Sonia Sotomayor garnered 34 chuckles. Justices Clarence Thomas (19), Amy Coney Barrett (19), and Jackson (7) elicited the fewest, a pattern that may reflect their more reserved argumentative styles and Jackson’s relatively short time on the court.

For broader context, I also tallied laughs between the 2017-18 and the 2024-25 terms. Gorsuch once again came out on top (at 225 laughs) with Roberts in second (at 189 laughs). Again, Kagan wasn’t too far behind, at 153. But the rest of the bench trailed significantly, with all other justices remaining in the double digits.

See for yourself:

Types of humor

That’s our funniest justice, but raw counts of how much laughter each justice gets tell only half the story. The type of humor justices employ has been studied less but is just as interesting (well, at least to us at SCOTUSblog). After going through the transcripts, I found that the types of humor can generally be sorted into five categories:

1. Making fun of the lawyers;
2. Making fun of fellow justices;
3. A self-deprecating joke;
4. Hypotheticals illuminating absurdity;
5. Misspeaks or accidental interruptions.

As the chart below illustrates, the most common type of humor targets the lawyers (Category 1). This is perhaps not surprising since, well, the lawyers do a whole lot of talking (if the justices allow them to). On a darker note, this may also result from Jacobi and Sag’s emphasis on power imbalances: Although it is the lawyers who have the microphone, it is the justices who determine the narrative and can use the lawyers as pawns, sometimes through ridicule, to do so.

Below I illustrate these categories through some selections from the 2023-24 and 2024-25 terms.

Category 1: Making fun of the lawyers

As noted above, the most common type of humor was making fun of the attorneys, usually by focusing on flaws in their arguments, a tactic especially favored by Kavanaugh (82% of his laughs) and Gorsuch (75%). But in United States v. Rahimi, challenging a gun ban for domestic abusers, Roberts also took a turn at this when pressing the advocate on the defendant’s dangerousness: 

CHIEF JUSTICE ROBERTS: Well, to the extent that’s pertinent, you don’t have any doubt that your client’s a dangerous person, do you?

MR. WRIGHT: Your Honor, I would want to know what “dangerous person” means. At the moment —

CHIEF JUSTICE ROBERTS: Well, it means someone who’s shooting, you know, at people. That’s a good start. (Laughter.)

Category 2: Making fun of the (other) justices 

Bench-on-bench banter, at 11% overall, may expose tensions between the justices, but other times shows the collegial nature of the court. Jackson led in this category (29% of her laughs), often archly summarizing the positions of her colleagues. On a (somewhat) more collegial note was this exchange in Wilkinson v. Garland, led by Alito: 

JUSTICE ALITO: … But, if you ask an ordinary person, you set out a certain set of facts, so let’s say I’m complaining about my workplace, it’s cold, it’s set at 63 degrees, there isn’t any coffee machine, the boss is unfriendly, all my coworkers are obnoxious, and — and you say am I experiencing — (Laughter.)

JUSTICE ALITO: No, I’m not — (Laughter.)

JUSTICE BARRETT: Okay. (Laughter.)

JUSTICE ALITO: Any resemblance to any living character is purely — purely accidental. (Laughter.)

Category 3: A self-deprecating joke

Occasionally, the justices will poke fun at themselves rather than the advocates or their colleagues. Thomas had the greatest share of this (18% of his laughs), but Gorsuch had the highest raw number of self-deprecating laughs (at 14). In Trump v. CASA, for example, on district courts’ power to issue nationwide injunctions, Gorsuch engaged in the following exchange: 

MR. FEIGENBAUM: So I do feel like something of an amicus to this question because nothing in my injunction rises or falls on this claim bucket.

JUSTICE GORSUCH: Exactly. So — so —

MR. FEIGENBAUM: But — so I’m happy to answer questions on that.

JUSTICE GORSUCH: — I — I need all the amici I can get. (Laughter.)

MR. FEIGENBAUM: Fair enough, Your Honor.   

Category 4: Hypotheticals

Members of the court at times have applied absurd extensions of advocates’ arguments in an effort to expose flaws in those arguments. This was done most commonly by Barrett. But Kagan was no stranger to this form of humor either. In FCC v. Consumers’ Research, on agency funding, she had the following to say:   

JUSTICE KAGAN: Again, you — again, you — you’re saying that we should interpret this statute to say that that word, “sufficient,” is not imposing a requirement, meaning sufficient, what is required to do these services, but not more than that?

MR. McCOTTER: Yes, because that’s what the FCC itself has said for 30 years.

JUSTICE KAGAN: Okay. I’ll add that to my list to things that I think would be an unreasonable statutory interpretation. Sufficiency means — like when I call the pizza operator and say: I want you to send me pizza sufficient for 10 people, and then an 18 wheeler shows up — (Laughter.) — that is not an accurate understanding of what I asked for. (Laughter.)

Category 5: Misspeak/Interruptions

And, finally, there are natural speaking or timing errors. Roberts leads in this category, likely as a result of his role as chief justice, putting him in charge of when the other justices and advocates may speak. Take this “exchange” from Brown v. United States:

JUSTICE KAGAN: Mr. Raynor —

JUSTICE KAVANAUGH: Sorry.

JUSTICE KAGAN: I’m sorry. Go ahead.

JUSTICE KAVANAUGH: Go ahead.

JUSTICE KAGAN: No, you — you were first.

JUSTICE KAVANAUGH: Go ahead.

CHIEF JUSTICE ROBERTS: Justice Kagan. (Laughter.)

CHIEF JUSTICE ROBERTS: Justice Kagan.

JUSTICE KAGAN: Can I take you back to the conversation that…

The bottom line

So, besides providing some (relatively rare) court entertainment, where does this get us?

As others have previously noted, laughs in the Supreme Court are not necessarily benign: They can and do empower, persuade, and divide. But that is not all. Such levity can also remind us of the justices’ humanity; that they are people who make good (and bad) jokes, just like the rest of us. And, in a time where many citizens view those with differing ideologies as caricatures rather than human beings, such a reminder is no laughing matter.