Humor, Part III: The Joke qua Joke

Attractive Nuisance defines a joke as a potentially free-standing remark, anecdote, or other narrative that at least attempts to be funny. But even under her rather unambitious definition, it turns out that jokes are pretty thin on the ground in American jurisprudence.

To locate judicial jokes, A-Nu did what she thought were several promising searches on Westlaw in both the federal and state databases: "why did the chicken" /s road; "walks into" /3 bar; "knock knock." The first two yielded no hits whatsoever; the third turned up an array of boring Fourth Amendment cases involving cops barging into people's homes and messing shit up.

Not so easily deterred, A-Nu then did term searches for "joke" and "punch line" and turned up a bunch of seriously unfunny jokes recounted as part of the evidence in Title VII sexual harassment cases. The punch line of such jokes generally turned out to be hilarious things like "fuck your sister and your mother is a whore." Reeves v. C.H. Robinson Worldwide, 525 F.3d 1139, 1141 (11th Cir. 2008) (failing, aggravatingly, to recount the set-up of quoted offensive punch line, thereby leaving A-Nu's curiosity forever unsatisfied). A-Nu does not, however, think that recounting a joke (or part of a joke) that someone made out in the real world counts as actually making a joke in an opinion, so this search, too, turned out to be fruitless.

Anyway, A-Nu was totally disappointed. For a moment she even thought she might have to eliminate the joke from her taxonomy of judicial humor. But then she breathed a sigh of relief. Surely the black-robed master of black comedy would rescue her. And sure enough, even A-Nu's typical lackadaisical searching speedily unearthed up a joke by Justice Scalia that, in addition to being a bona fide joke, is (unlike many jokes) also funny. The joke appears in Rapanos v. United States, 547 U.S. 715, 754 n.14 (2006) (plurality opinion):

"[A]n Eastern guru affirms that the earth is supported on the back of a tiger. When asked what supports the tiger, he says it stands upon an elephant; and when asked what supports the elephant he says it is a giant turtle. When asked, finally, what supports the giant turtle, he is briefly taken aback, but quickly replies 'Ah, after that it is turtles all the way down.'"

Rapanos itself is too boring and complicated to describe here, but, happily, all one needs to know is that Scalia is using his joke as an unflattering analogy for the logic of Justice Kennedy's separate opinion (although Kennedy probably invited the insult by concurring only in the judgment, thereby depriving Scalia of a majority).

Inspired by Scalia's wit, A-Nu then did some more searching and uncovered a joke-adjacent remark by Judge Shadur of the Northern District of Illinois, sitting by designation in Commonwealth of Puerto Rico v. United States (1st Cir. 2007). Following upon a lead opinion by Judge Lipez and a concurrence in the judgment by Judge Boudin, Shadur demurs:

"In this instance the thoughtful opinions by Judge Lipez and Chief Judge Boudin put me in mind of the old saw about the politician who says of a controversial issue, 'Some of my friends are in favor of X, and some of my friends are in favor of Y, and I'm in favor of my friends.' Both opinions reach the same destination, albeit by different routes, and at the end of the day I share their common conclusion[.]"

It's sort of a joke, right? Well, at this point A-Nu will take what she can get.