After finding the most talkative Justice, I was interested in finding the funniest Justice. According to my calculations, there were 51 total references to (Laughter.) in the court’s first two months of arguements. Here is the breakdown:
No surprises here. Scalia talks almost twice as much as everyone else. John Roberts is incredibly personable and his colleagues are marginally funny as well.
Here is the highlight reel. I’ve tried to include sufficient background information, but you can always click on the link to take you to the transcript. Enjoy-
CHIEF JUSTICE ROBERTS: Well, I’m sure that’s not always true. I mean, if the leader of some vast conspiracy is the one who blows the whistle, I suspect he may well be charged anyway.
JUSTICE SCALIA: Lex Luthor might.
JUSTICE SCALIA: So why don’t you just swallow all these things and say, yeah, I suppose the court of appeals could say that, but —
MR. GREEN: I — I —
JUSTICE SCALIA: — but my point stands?
MR. GREEN: Yeah, well, I’m happy to swallow in that sense.
JUSTICE BREYER: If Congress passes a statute that says the mandatory minimum sentence of eight years for possessing a 12-inch shotgun unlawfully, does that mean it wants four years for a 6-inch shotgun?
CHIEF JUSTICE ROBERTS: Well, doesn’t that seem kind of odd, that if a State can have no role for voters, it can have a pure convention, that they’re penalized if they have some role for voters?
MR. SCHWARZ: I wouldn’t put it as being penalized, Your Honor. I think it is the —
CHIEF JUSTICE ROBERTS: Being found unconstitutional is a pretty severe penalty.
JUSTICE BREYER: Maybe you could spend a minute explaining that, because, as I read the Constitution, it says all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land, and the judges in every State — I guess it means including Texas —
JUSTICE SCALIA: That is conferring upon the ICJ the responsibility to decide the meaning of a United States treaty which is United States law.
MR. CRUZ: And —
JUSTICE SCALIA: I’m rather jealous of that power.
JUSTICE SCALIA: … So I guess the whole doctrine is — is based on dictum. So we may as well put it in all an appendix. Let’s put our dictum in an appendix. I agree.
MR. DIAZ: In answer to Your Honor’s question or comment —
JUSTICE STEVENS: But your basic position is that we should not be making new law. We should be — we might have misinterpreted the law over the years, but, basically, this Court has no power to change the text of the Constitution or its meaning. I guess Justice Scalia’s position is we have all that power in the world.
JUSTICE SCALIA: My position is we have asserted all that power in the world.
JUSTICE STEVENS: … But the notion we can make up a new rule of law at will strikes me as a very dramatic departure from what I understand the rule of law to require.
JUSTICE SCALIA: I’m really glad to hear that.
MR. DIAMOND:[After a few minutes without speaking] Your Honor —
CHIEF JUSTICE ROBERTS: I think you’re handling these questions very well.
JUSTICE GINSBURG: That was not a question addressed to you, Mr. Diamond.
JUSTICE SOUTER: So don’t you have to take — therefore, if you’re going to answer Justice Alito as you did, don’t you have to take the position that Carbone really is not good law and the Carbone/United Haulers distinction is not a — is simply not a relevant distinction?
As a dissenter in Carbone, I naturally do not find that the worst answer you could give.
JUSTICE ALITO: Well, as a dissenter in United Haulers, I also don’t think it’s a good distinction.
JUSTICE STEVENS: We are talking about not just a dormant Commerce Clause, but a dormant Congress.
[Background information-- Chief Justice Roberts represented the government during oral arguments in Irwin v. Deparment of Veteran's Affairs when he was a deputy solicitor general]
JUSTICE STEVENS: One last question: We disagreed on parts of the Irwin opinion, but I take it you would agree with me that the government was particularly well represented in that case, wouldn’t you?
MR. STEWART: The government could not have been better represented, Your Honor.
CHIEF JUSTICE ROBERTS: It is hard to understand how they could have lost the case.
MR. STEWART: I had the same reaction reading the transcript.
MR. ROSE: The charge Form 5 was file on — well, she signed it on the 30th. It may have been filed a couple of days later. But whatever it was, that was submitted. I sent it to the EEOC by, I think, FedEx.
JUSTICE SCALIA: But suit was pending at that time.
MR. ROSE: Well, I used FedEx —
JUSTICE SCALIA: That’s pretty risky.
MR. ROSE: I used FedEx for a record because I can use their tracking. Some of the tracking documents are in the joint appendix. I dealt with — I dealt with FedEx in the Bost case. I call it Bost. I’m not sure whether it’s “BOSST” or “BOEST.” He calls himself Tony, so I don’t know.
In any event –
JUSTICE SCALIA: Answer my question. Was suit already filed at that point?
In Hall v. Mattel-
JUSTICE BREYER: My temptation is to say they’re open questions and they’d have to be argued on remand, which makes this case the case of the century, I guess, in a certain respect. It’s quite a difficult case.
MR. PHILLIPS: I was just looking for the case of the day, Your Honor, actually.