The joker was a jurist: Considering the matter of Supreme Court justice Antonin Scalia

April 23, 2014

By Matthew E. Milliken
April 23, 2014


That’s the number of times this month that Antonin Scalia, the longest-sitting U.S. Supreme Court justice, has publicly suggested rebellion against the U.S. government.

The first instance took place in early April, at a Brooklyn Law School event. In a roundup of legal news, Joe Patrice restated the the episode this way: “Justice Scalia was asked, ‘Why should society be bound by laws that were passed only by white male property owners?’ If you guessed he’d eschew a substantive response in favor of a condescending sarcastic quip, you’re right!”

What was the quip? Let’s go to an April 8 Wall Street Journal article about Scalia’s visit to the school, which closed with an anecdote about the question that Patrice had highlighted. The justice, in reporter David Shapiro’s telling,

hesitated for a few seconds, longer than he had all evening. “That’s a reasonable position,” he smiled. “You people wanna make a revolt? Do it!”

Something not dissimilar happened last week, when Scalia delivered a lecture at the University of Tennessee law school. In response to a question, Scalia stated that the income tax is constitutional, “but if it reaches a certain point, perhaps you should revolt.”

Now, let’s not take these suggestions too seriously.

Scalia is something of an amateur humorist. Legal scholar Jay Wexler’s reviews of official court transcripts found the dean of the bench to be the funniest justice by far, eliciting 77 laughs in the 2004-05 term and 54 over the subsequent term. The New Jersey native led the way in 2007-08, too, racking up 74 laughs, per an assessment by the website DC Dicta. This held for the 2011-12 season as well; Wexler tallied 83 Scalian laughs that year, including 14 during the hearing on the Affordable Care Act, a.k.a. Obamacare. In the 2012-13 term, Scalia topped the field with 50 laughs.

(Incidentally, Justice Stephen Breyer has typically finished second to Scalia in the Supreme Court joke tallies. However, he came in third in 2007-08, accumulating 21 laughs, behind Chief Justice John Roberts’ 23.)

Here are some samples of mirth-provoking Scalian wit, as indicated by official court transcripts:

• “[O]pposing counsel being as friendly as they are nowadays.” — March 26, 2007.

• “What’s a footman? I don’t even know what a footman is. What is a footman?” — April 16, 2007.

• “Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages? And do you really expect the Court to do that? Or do you expect us to give this function to our law clerks?” — March 28, 2012.

• “I don’t care whether it’s easy for my clerks. I care whether it’s easy for me.” — March 28, 2012.

• “Have a conference committee report afterwards, maybe.” — March 28, 2012.

• “Is there any dictionary that gives that, that definition of ‘essential’? It’s very imaginative.” — March 28, 2012.

• “A lot of people marry for money.” — April 23, 2013.

To this data, let’s add one more item: The case of the, er, rude hand gesture. In spring 2006, the Supreme Court justice was leaving a Boston cathedral when a reporter asked Scalia about criticism of his Roman Catholic beliefs. Depending on who you ask, the jurist either made an obscene gesture; made a dismissive gesture; and/or announced, ‘To my critics, I say, ‘Vaffanculo,’” a rude sexual Italian expression.

Scalia later wrote a letter to the editor asserting that his hand gesture merely asserted indifference.

Taken as a whole, the evidence leads me to the following four conclusions:

• Scalia enjoys making jokes.

• Scalia enjoys provoking people, particularly those who hold different opinions than he does.

• While Scalia may be successful both at making folks laugh and at provoking people, he is not a particularly funny man.

• Scalia doesn’t always mean what he says (or does).

Now, even important judges are allowed to have a sense of humor; the quality of that sense of humor is, of course, irrelevant to one’s freedom to make jokes, however tasteless.

But I wonder if Scalia has asked himself this question: Would it be worse for people to start dismissing his serious legal opinions as jokes or for them to start taking his jokes as serious legal opinions?

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