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Posted by Josiah Jenkins on Tue Jan 15 2013

The worst joke ever wasn’t told by a comedian. It wasn’t told in a comedy club. And it wasn’t shown on TV.

The worst joke ever was told by a lawyer on December 13, 1971:

Mr. Chief Justice, may it please the Court. It’s an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word.”

Thus spoke Jay Floyd, an attorney for the state of Texas, opening an argument in front of the US Supreme Court. He was arguing against a plaintiff whose real name was Norma McCorvey, although she was given a different name by the court and her attorney, Sarah Waddington.  Those were the “two beautiful ladies” in the joke.

They were all at the Supreme Court to argue whether there was a fundamental right to abortion in the United States. If you haven’t guessed by now, the name the Court gave Norma McCorvey was Jane Roe.  And, as they say, the rest of Roe v. Wade ishistory.

But why did Jay Floyd decide to make history this way? Ryan Malphurs is an expert on the high court and the author of a book titled “Rhetoric and Discourse in Supreme Court Oral Arguments.”

“Working within Texas, and specifically within Dallas and the Eastern District of Texas, it is not uncommon for Texas attorneys to use humor in their statements to jurors. It’s also not unusual for attorneys to come to the Supreme Court and bring their same style of argument that they’ve developed over years and years of experience,” Malphurs says.

Indeed, when we think about attorneys, it’s easy to imagine Richard Gere in the musical Chicago, using his charm to delight the jury. But there’s a big difference between humor in front of a jury and humor at the Supreme Court.

“I think there’s a classic form for a speech where you open a speech with a joke. I think that’s a disaster at an oral argument,” says Linda Coberly, a former clerk for Justice Breyer and Vice Chair of the Appellate Division at the law firm Winston & Strawn.

“If you are an advocate you want to open with the reason why you should win your case. If the first thing that comes out of your mouth is a joke, I think you’ve really wasted an opportunity,” Coberly says.

Legal scholar Ryan Malphurs has spent a lot of time in the Supreme Court, which he says feels more like a church sanctuary than a courtroom.

“It has pews, it has chancel railings, it has areas that the lay public are not allowed to go.”

And these formal spaces share another thing in common. They’re both places where Latin phrases are more common than jokes. But that doesn’t keep lawyers from trying to make jokes anyway.

Take for example, United States v. Stevens, a case about whether the First Amendment protects so-called “crush videos.” The less you know about crush videos, the better for your life as a human being. Suffice to say they are depictions of animal cruelty.

Malphurs was in the courtroom at the time. To understand what happened, you should know that Justice Antonin Scalia hates it when advocates talk about legislative history. In this situation, the advocate was talking about legislative history and turned directly to Justice Scalia and remarked:

“I realize that is not relevant to you, but it may be to others on the court.”

“There were gasps and loud laughter that echoed through the court at the time,” Malphurs recalls. “And you noticed immediately Justice Scalia jump up from his chair almost and lean forward.”

To put it mildly, the lawyer messed with the wrong guy. The first five minutes had been controlled by the attorney. But the remaining 25 minutes were Scalia’s.

“He completely dominated that advocate’s oral argument and prevented him from being able to articulate a clear and cohesive argument to the rest of the Court,” Malphurs says. With one joke, “this advocate woke a sleeping dragon.”

He would go on to lose his case, and by a lot. In the end he had eight justices against him and only one on his side.

Surprisingly, though, some advocates are able to use humor and use it well at the Supreme Court. If you asked court-watchers to name the best lawyer working today, you’d expect to hear Paul Clement’s name come up a lot. In some of the Court’s recent big cases—The Affordable Care Act, the Arizona immigration law, and others—he argued one of the sides.  And within the legal field, Clement isn’t just one of the best advocates, he’s one of the funniest.

Here’s Clement bringing the house down in a case from 2007:

Justice Scalia: “When do you think the bad old days ended?”

Paul Clement: “Patterson was 1989. I don’t think anybody thinks Patterson was the bad old days.”

Justice Scalia: “I’m sorry, I’m thinking of Sullivan.”

Paul Clement: “The bad old days ended when you got on the Court, Mr. Justice Scalia.”

Um, so maybe you’re not rolling on the floor, but there is a bigger point here.

Here’s how Clement himself breaks down one of his biggest laugh lines, from a 2007 case called Hein v. Freedom From Religion Foundation. Vocabulary primer: “colloquy” is a formal term for a conversation—in this case between Paul Clement and the justices on the court.

“This colloquy, if I remember it right, comes after Justice Scalia has been beating me up over the distinctions that we had drawn in our brief. But of course, we hadn’t made these distinctions on our own. These were the distinctions that the court had drawn in its own establishment clause cases,” Clement recalls.

“And so, after having gotten beat up basically trying to defend the court’s precedents, Justice Alito gave me what is probably one of the friendlier questions I’ve ever gotten at the Court.”

Justice Alito: “Are you arguing that these lines that you’re drawing make a lot of sense in an abstract sense? Or are you just arguing that this is the best that can be done that this is the best that can be done within the body of precedent that the Court has handed down in this area?”

Paul Clement: “The latter, Justice Alito. And I appreciate… I appreciate the question.”

“Why didn’t you say so?”

Justice Alito: “I… I’ve been trying to make sense out of what you’re saying.”

Paul Clement: “Well, and I’ve been trying to make sense out of this Court’s precedents.”

So this isn’t hilarious—it’s dense banter, but an attorney’s skill at this high-wire act can make all the difference.

“One of the things you really see when he argues is a very conversational style. It’s a delicate balance because you don’t want to be too conversational, in the sense of losing the respect for the judges. And I think Paul walks that line very, very well,” Linda Coberly says. She spent a term with the Justices, and she thinks they do appreciate a little levity now and then.

“They like nothing better than a good joke. Now, they’re very, very serious about the work they’re doing. But as colleagues, they’re very comfortable with one another and see a place for humor,” she says.

In fact, Ryan Malphurs compares oral argument to meeting a romantic partner’s family for the first time.. “You’re sitting down to a large dinner, and there’s nine to 12 people in front of you and they begin asking questions.”

As with your in-laws, you might want to do your homework before trying to be even the slightest bit funny. And even then, you probably still shouldn’t risk it.

Which brings us back to the opening joke from Roe v. Wade. I first learned about the joke in an undergrad class when my professor mentioned it one day in passing. But I keep thinking about it.

“It’s an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word. Before I proceed to the original issue in this case.”

In the Court’s recording, you can hear Jay Floyd pause for nearly three seconds waiting for laughter.  And he was greeted with silence.  Three seconds with more than 40 years of ramifications.

“In this situation, which I really think is one of the biggest legal flops of all time, I think that Jay Floyd felt that he had a dead ringer of a joke that he could trot into the justices,” Coberly says.

Since first hearing about this clip a decade ago I’ve both become a lawyer and an improv comedian. Through all that I’ve had this joke in the back of my mind.  To me, the most amazing thing is not just how bad the joke was—but how bad it was for the setting.  Arguing in 1971, in the midst of a cultural revolution, Jay Floyd should have done everything he could to downplay abortion as women’s rights issue. Instead he highlighted gender roles, and in all the wrong ways.

Roe v. Wade would actually be argued a second time, and that time Jay Floyd wouldn’t get to represent the state. Jane Roe’s lawyer had been too unfocused on the first argument, but she came ready on the second trip and found an argument that would persuade the court.  In essence, with his corn-pone humor, Jay Floyd ruined the state’s best opportunity for a knock-out blow.

Maybe he should have read Section 3 of the Supreme Court’s Guide for Counsel. One of the pieces of advice in there:

“Attempts at humor usually fall flat.”

Music featured in this episode by Matthew Daher, Kyle Kaplan and the Big Basie Band.

Special thanks to Jerry Goldman, who created and maintains the Oyez Project (http://www.oyez.org), where you can find audio for all of the oral arguments featured in this piece.