Jay Wexler gets a laugh for counting SCOTUS yuks

On New Year’s Eve morning, New York Times readers were greeted with a page one feature headlined “So, Guy Walks Up to the Bar, and Scalia Says…”  It was a light feature that showcased a tongue-in-cheek survey by BU Law Professor Jay Wexler of how many times the notation “laughter” appeared in transcripts of U.S. Supreme Court arguments during the last term. The Associated Press followed up with a story on New Year’s Day. Within a week, an interview with Wexler aired on WBUR’s Here and Now program. Then, to Wexler’s amusement and surprise, a full-blown sit-down interview with ABC News’ Nightline, aired January 10 at the end of a report on day two of the Senate Judiciary Committee hearings on the nomination of Samuel Alito to succeed Sandra Day O’Connor on the high court.

By Jay Wexler

I’m glad that the last day of the year is usually a slow time for news, because otherwise I’m pretty sure that my little two-page study of humor at the Supreme Court wouldn’t have gotten any attention at all, much less the surprising national attention it received.

I researched and wrote the study over a few days last summer. The Supreme Court reporter has long noted when there is “laughter” in the courtroom, but until last term, did not identify the questioning justices by name. So it was impossible to tell whose quip or comment caused the laughter. Starting in October 2004, the reporter started identifying the justices by name, so it suddenly became possible to tell who gets the most yuks from the bench. Having realized this, it did not take long to go through the 2004-2005 transcripts and keep track of who got the most laughs. Writing the piece was fun and basically effortless.

I sent the piece to a law journal called the Green Bag, which prints shorter, more accessible, and more entertaining articles about law than the typical academic legal journal. In fact, I think it’s accurate to say that if the Green Bag did not exist, I would not have even written the article, because I would have figured nobody would publish it. The Green Bag accepted it for publication within days. I basically forgot about the article and moved on to other things.

The Green Bag article came out in mid-December, and about a week later I got a phone call from Adam Liptak of the New York Times. Adam had read the piece, he said, on the way to work one day, really liked it, and might want to make mention of it in an article he was going to write. We talked on the phone, and I answered a few questions about what counts as laughter at the high court and how the new chief justice might fare in the humor category. Liptak said he would probably write it up in the next couple of days so it could come out over the weekend, so I knew there was going to be some mention of my Green Bag article in the Times. But I had no idea his article was going to focus on my study—or that it would appear on the front page.

By the time I woke up on Saturday morning, New Year’s Eve, I already had a dozen e-mails in my inbox from friends (and people I haven’t talked to or seen in over a decade) congratulating me on the story. I put on my coat and walked to South Station and got two copies of the Times, stopping to read the full story in the food court.

Obviously I was surprised and thrilled by what Adam had written. I think his piece is beautifully done, exactly in the same absurd deadpan tone as the original study. I owe him a lot of gratitude for bringing my work to a national audience. Throughout the day I continued getting e-mails and phone calls from friends and colleagues. Then came the call from Brooke Donald of the Associated Press, who interviewed me. His follow-up article the next day brought the story to even more people around the country and the world.

Several days later I got a phone call from Dan Morris, a producer at ABC News’ Nightline. He said the show wanted to do a little segment on the study, using audio clips from Supreme Court oral arguments. (The day before I had received a call from ABC’s Good Morning America, but their interest waned when I informed them that there is no video of oral arguments because the justices don’t allow cameras into the courtroom.)

I couldn’t really believe Nightline wanted to do a piece on Supreme Court humor, but, of course, was delighted. I kept in touch with producer Morris over the next couple of days, and we set the interview for Wednesday afternoon in the BU law school’s faculty lounge. The day before, in what was great preparation for the Nightline piece, I was also interviewed for WBUR radio’s “Here and Now” program, which is syndicated on other NPR stations around the country.

I had no idea what to expect of the Nightline piece. The interview with Jake Tapper went great, I thought, and I had a lot of funny (hopefully) quips that I wanted to get in—and was able to say most of them. Although the interview lasted about a half hour, the segment itself was going to be quite short, so everything was going to turn on how they edited the piece.

The show aired on Tuesday, January 10. The producer called about 10 p.m. to tip me off, only an hour and a half before air time. After making some frantic calls and sending e-mails to friends and family, I sat down to watch.

I thought it was great. Only a few excerpts of the interview made it in, but several (the reference to justices joking in the sauna and a comment about Justice Stephen Breyer’s “creepy” joke in a case involving abortion) were among my favorites. Particularly gratifying was the extended shot of the Mister Potato Head that sits on my office desk wearing a Boston Red Sox hat. Overall, the experience was great fun, very exciting, and a fabulous way to start the new year.