Washington (CNN) – Who says the Supreme Court does not have a sense of humor? The normally sober-minded justices, and those who argue before them, usually have their game faces on, but occasionally some light-hearted moments liven up the proceedings.
Solicitor General Elena Kagan, nominated to the high court this week by President Barack Obama, has argued six cases before the high court since September, and has both zinged and been zinged by her potential future colleagues. She has shown an easy and conversational manner with the court, which might not have been expected since she had never previously argued a case before any court.
Kagan and Justice Antonin Scalia in particular have had their comedic duo moments.
Here are some excerpts of the justices and Kagan engaging in funny - and some not-so-funny– moments. Don't worry about the technical, legalese aspects of what they are discussing, just appreciate their (often strained) efforts at levity.
Note: Where the words "laughter" appear, that indicates the reaction from those attending the arguments, which was duly noted in the court transcripts of the proceedings. Call it the court's official version of a laugh track.
DATE: January 12, 2010
ISSUE: Civil commitment, and the power of the federal government to keep convicted sex offenders behind bars, even after they have served heir lawful sentences. Kagan argued for the government that a federal law allowing so-called "civil commitment" is constitutional, and would not overstep a traditional state function.
SCALIA: I must say I'm not terribly impressed with the argument the states won't do it.
KAGAN: I can tell, Justice Scalia. (Laughter.)
SCALIA: If they [convicted military prisoners in the military] were released from the Army, would that also - if I want to turn this person, after discharge, loose upon the society - could the federal government commit that person?
KAGAN: Mr. Chief Justice - excuse me, Justice Scalia - I didn't mean to promote you quite so quickly. (Laughter.)
CHIEF JUSTICE JOHN ROBERTS: Thanks for thinking it was a promotion.
SCALIA: And I'm sure you didn't. (Laughter.)
DATE: March 31, 2010, possibly Kagan's last argument as solicitor general
ISSUE: Whether prosecution for criminal contempt of a court created by Congress may be brought by a private individual in his or her own name.
KAGAN: When a single U.S. attorney's office says that the government will decide to drop a certain set of charges, that U.S. attorney's office, we believe, is speaking for itself, unless there is some indication that it is speaking more widely in such a way that will bind other parts of the government.
ROBERTS: That's absolutely startling. The different U.S. attorneys all work for your boss, right? They work for the attorney general. How can one part of the attorney general agree to something that doesn't bind the other part of the attorney general?
KAGAN: The United States government is a complicated place and the fact that –
ROBERTS: I take your word for it. (Laughter.)
KAGAN: I think only the D.C. [District of Columbia local] court could have prevented the respondent from going forward. I think that the U.S. –
SCALIA: And I have to agree with you that to accept this argument that the prosecutor here is an agent just of the court, just of the D.C. court, not an agent of the executive ?
KAGAN: Who would you like the person be an agent of, Justice Scalia?
SCALIA: Well, I'm not making the argument.
ROBERTS: Usually we have questions the other way.
KAGAN: I apologize.
DATE: December 7, 2009
ISSUE: Corporate fraud, and the constitutionality of the Sarbanes-Oxley financial oversight law that grew out of accounting scandals at Enron Corp. and other companies.
JUSTICE SAMUEL ALITO: Well, let me give you an example. Suppose the president objects to very large salaries that the members of the [oversight] board receive. What are their salaries?
KAGAN: Excuse me. They are over $500,000.
ALITO: And did they decide that themselves?
KAGAN: Subject to the review of the [Securities and Exchange] Commission [which has oversight of the financial oversight board]. And the commission has been active in this area.
ALITO: Suppose the president reads about this and he says: This is outrageous; I want to change it. How can he do that? Remove –
KAGAN: Well, I think he does –
ALITO: - remove the SEC commissioners unless they take action against the board?
KAGAN: I think he does everything that he would do with respect to any other SEC function, is that he or some member of his staff would call the chair or would call other commissioners and say: I have a problem with this.
SCALIA: [offering a hypothetical order by the president] "Would you please change it," right?
KAGAN: Would you p-l-e-a-s-e [stretching out the word] change it.
SCALIA: I could do that. (Laughter.)
DATE: February 23, 2010
ISSUE: Civil liberties dispute over the government's power to criminalize "material support" of a terrorist organization. Does a key provision of the 2001 Patriot Act threaten free speech rights of those who would provide financial and other aid to lawful, non-violent activities of designated groups?
*Kagan stands up to speak, following the arguments of a much taller attorney. She has to crank a lever to lower the lectern, so the 5-foot-3 solicitor general can be seen and heard.
ROBERTS: General Kagan ...
KAGAN: (as she is cranking) With your permission, Mr. Chief Justice. This may take some time. (Laughter.)
JUSTICE SONIA SOTOMAYOR: Under the definition of this statute, teaching these members [accused terrorists] to play the harmonica would be unlawful. You are teaching - training them in a specialized activity. There has to be something more than merely a congressional finding that any training [of a terrorist group] is bad.
KAGAN: Well, I think here we have the congressional definition of what kind of training is bad, and that definition focuses on training in specialized activities. Now, you say, well, maybe training, playing a harmonica is a specialized activity. I think the first thing I would say is there are not a whole lot of people going around trying to teach al Qaeda how to play harmonicas.
SCALIA: Well, Mohammed Atta [one of the 9/11 hijackers] and his Harmonica Quartet might tour the country and make a lot of money. Right?
KAGAN: I'm sorry. I ... (Laughter.) [Kagan doesn't laugh and looks puzzled that a joke has been told at her expense]
DATE: September 9, 2009
ISSUE: Whether congressional limits on federal campaign spending by corporations - business, unions, and advocacy groups - go too far in restricting political speech, a right individuals enjoy to influence elections.
JUSTICE JOHN PAUL STEVENS: Before you go to your second point, may I ask you to clarify one part of the first, namely, your answer to the question I proposed to Mr. [Theodore] Olson [arguing against Kagan], namely, why isn't the Snowe-Jeffords Amendment, which was picked on by Congress itself, and which is argued by the NRA [National Rifle Association], an appropriate answer to this case?
KAGAN: That was my third point, Justice Stevens.
STEVENS: Oh, I'm sorry. (Laughter.)
KAGAN: So we will just skip over the second.
ROBERTS: Isn't it extraordinarily paternalistic for the government to take the position that shareholders are too stupid to keep track of what their corporations are doing and can't sell their shares or object in the corporate context if they don't like it?
KAGAN: I don't think so, Mr. Chief Justice. I mean, I, for one, can't keep track of what my - where I hold my investments –
ROBERTS: You have a busy job. You can't expect everybody to do that.