Humor and Persuasion: The Effects of Laughter during US Supreme Court's Oral Arguments

• DOI: http://doi.org/10.1111/lapo.12145
• Published date: 01 April 2020
• Author: Tom Pryor,Siyu Li
• Date: 01 April 2020

Humor and Persuasion: The Effects of Laughter

during US Supreme Court Oral Arguments

SIYU LI and TOM PRYOR

Is the decision-making of Supreme Court jus tices influenced by extraneous factors beyond law

and policy? We explore this question by examini ng attorney-induced laughter during ora l

arguments in cases heard by the Court . Drawing on theories of political psychology and social

cognition, we posit that laughter serves as a positive affectivecue that might favorably dispose

justices (albeit subconsciously) to the si de causing the laughter. Analyzing oral argume nt

transcripts during the 1986–93 terms, we find that t he side causing more instances of laughter

is more likely to win the votes of individ ual justices, even while controlling f or other legally

and politically relevant factors. We further find that the effect of laughter is conditional—it

exerts a heightened persuasive po wer on ideologically congruent justices, in noncomplex case s,

and when the legal argumentation is of hi gher quality. Our research thus cont ributes to the

growing literature on personal an d emotional aspects of judicial de cision-making and, specifi-

cally, the emerging scholarly int erest in the role of humor during Supreme Co urt oral

arguments.

The Supreme Court granted certiorari in Rousey v. Jacoway (2005) to tackle the rela-

tively mundane question of whether individual retirement acc ounts were exempt from

bankruptcy under federal law. When the advocate for petitioners, Pamela S. Karlan,

stood up to deliver her final rebuttal, Justice Stevens inform ed her that she had “about

seven minutes. You’re not required to use it all .” Karlan responded, “I’m going to retire

early,” which elicited several appreciative chuckles in the courtroom. In total, four out-

breaks of laughter in the courtroom were cre dited to Karlan while her opponent, Colli

C. McKiever, did not produce any laughter. The petitioner we nt on to win the case in a

9–0 decision.

The petitioners did not win solely because Karlan made the courtroom laugh. Indeed,

the policy stakes in Rousey were high, and justices are professionals. More generally,

much of what we know about the Court suggests that justices vote in a way that maxi-

mizes their policy preferences (Segal and Spaeth 2002) while operating within certain

institutional and collegial constraints (Epstein and Knight 1998; Maltzman, Spriggs, and

Wahlbeck 2000) and within the broad confines of the law (Richards and Kritzer 2002).

The justices might enjoy a good joke as much as anyone else, but the bulk of research

We would like to thank Tim Johnson, Chris Federico, Logan Stundal, Matt Eichinger, the anomymous

reviewers, and the editor of Law & Policy for helpful comments and suggestions. A draft of the article was pres-

ented at the 2019 annual meeting of the American Political Science Association in Washington, DC.

Address correspondence to: Siyu Li, Department of Political Science, 1414 Social Sciences Building,

267 19th Ave. S., Minneapolis, MN, 55455. Telephone: 651-442-9565; Email: lixx5010@umn.edu.

LAW & POLICY, Vol. 42, No. 2, April 2020

©2020 The Authors.

Law & Policy ©2020 University of Denver and Wiley Periodicals LLC.

doi: 10.1111/lapo.12145

ISSN 0265-8240

into judicial decision-making suggests a fleeting moment of levity is a drop in the bucket

compared to the weighty concerns that drive their decisions. More specifically, the pre-

dominant approaches to researching judicial decisions tend to treat judges as hyper-

rational, utility-maximizing automatons.

In contrast, a growing body of research treats Supreme Court justices, perhaps appro-

priately, as human beings and, as such, allows for the possibility that emotions may fac-

tor into their decisions (Black et al. 2011). That is, their personal backgrounds may

influence votes (Wedeking 2012; Glynn and Sen 2015), they may make mistakes

(Guthrie, Rachlinski, and Wistrich 2007), and they might engage in motivated reasoning

(Braman 2006; Braman and Nelson 2007). The point of these analyses is that although

Supreme Court justices are some of the smartest people on the planet, they are still sub-

ject to the same psychological forces that drive the behavior of the mass public.

Humor is certainly no t relevant to the legal mer its of an argument, and a g ood

joke does not change the policy implications of a case. Indeed, if justices are con-

strained by the law and by institutional for ces, or if they are hyper rational policy

maximizers, humor s hould not influence thei r votes on any level. Ho wever, if laugh-

ter during oral argument affects the justices’ votes, even marginally, it would be pow-

erful evidence to support the argument that justices are affected to some degree by

automatic, subcons cious thought proces ses and are influenced b y incidental stimuli.

For our purposes, this means that, while telling a good joke during an oral argument

may be a drop in the bucket compared to every other factor that influences justices’

decisions, there is no telling which drop will cause the bucket to overflow. Literature

on social cognition and political psycho logy has establishe d that much of human rea-

soning occurs throug h largely automatic su bconscious process es (Bargh and Char-

trand 1999) and that inci dental and irreleva nt stimuli can influence our decision s

(Lodge and Taber 2013) . By combining the jud icial decision-maki ng literature with

theories derived from so cial psychology and cogni tion, we explore whether co gnitive

processes common amon g the mass public can exp lain features of elite de cision-

making as well.

Using voice-identified data on the instances of laughter produced by attorneys’

remarks during oral arguments, we find that individual justices are significantly more

likely to vote for the party whose attorney(s) induce more laughter in the courtroom.

This finding constitutes a modest yet important step toward better scholarly understand-

ing of the subconscious aspect of judicial decision-making. Hence, our research comple-

ments Jacobi and Sag’s (2019) argument that centers around how justices purposefully

use humor as a method of advocacy.

Critically, we find the effect of laughter to be intimately conditional on some key

conventional facto rs affecting justices ’ votes: justices’ id eological preferenc es, the legal

complexity of a case, and t he quality of an attorne y’s legal argumentatio n. Specifically,

attorney-induced lau ghter exerts a stronger pers uasive power on ideologic ally compati-

ble justices, in nonco mplex cases, and when t he attorney’s overal l legal argumentation

is better.

The article proceeds as follows. First, it explicates the theoretical background for

why laughter might influence Supreme Court justices during an important stage of their

decision-making process —oral arguments—and then offers several hypotheses about

this phenomenon. From there, it describes the data used to test our hypotheses.

Finally, it present s the results of the stat istical analyses and t hen situates the resu lts

within the literature on judicial politics and the psychology of elite decision-making

more broadly.

©2020 The Authors.

Law & Policy ©2020 University of Denver and Wiley Periodicals LLC.

Li and Pryor LAUGHTER AT THE U.S. SUPREME COURT 163