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The hallowed courtroom at the U.S. Supreme Court was hushed during oral arguments in a case considering whether Indian tribal courts have the authority to hear a civil claim involving a company that is not owned by a tribal member.

As attorney David Frederick, co-director of the Supreme Court Clinic at The University of Texas at Austin Law School, urged the justices to uphold the tribal court's ruling in the case, Chief Justice John G. Roberts, Jr., posed a question.

"One of the points you mentioned earlier is that this is an Indian corporation, and that's a concept I don't understand," Roberts said during arguments in Plains Commerce Bank v. Long Family Land & Cattle Co. "If Justices [Antonin] Scalia and [Samuel] Alito form a corporation, is that an Italian corporation?"

The query drew chuckles from the crowd as Frederick dodged: "I would like to beg the indulgence of the Court in not answering that question specifically."

Then Scalia saw an opportunity for a punch line.

"And do we get special loan guarantees?" he asked, drawing a big laugh from the onlookers.

Although the Supreme Court is not exactly the Second City comedy club, it has its share of funny moments. And if the visitors seated in the wooden pews are laughing, more likely than not it is Scalia who is cracking them up.

Scalia – known for his conservative bent and outspokenness both inside and outside of the courtroom – also has a softer, funnier side. In fact, he is the funniest justice on the bench, according to the Court's official oral argument transcripts.

When the oral argument season for the October 2007 term wrapped up in April, Scalia had drawn a total of 74 laughs, according to the transcripts – more than three times the number of laughs of the next funniest justice, Roberts, received. Click here for details on how all the justices ranked on the humor scale.

Perhaps adhering to the old adage "always leave 'em laughing," Scalia made the crowd laugh 18 times in the month of April alone.

Scalia can see the funny side of even the most serious, tedious or legally convoluted cases.

For example, during April arguments in Engquist v. Oregon Department of Agriculture, a case considering whether the "class of one" employment discrimination theory can be asserted by a public employee, Scalia saw the chance to make a quip.

"Well, we are not relying on the text of the Equal Protection Clause," Lisa Blatt, assistant to the U.S. Solicitor General, said at one point.

"Oh, don't rely on the text, certainly!" Scalia said without missing a beat, causing chuckles throughout the Court.

Lawyer as straight man

Scalia's jokes sometimes come at the expense of attorneys, as in Indiana v. Edwards, a case considering when a criminal defendant is legally competent to represent himself at trial, which was argued in March.

"[T]he rule that we are suggesting [is] that it is within the state's authority to override this right where the defendant cannot communicate coherently," Indiana Solicitor General Thomas M. Fisher argued to the Court.

"Cannot communicate coherently? I sometimes think that the lawyers cannot communicate coherently," Scalia said as the crowd snickered.

During February oral arguments in Allison Engine Co. v. U.S. Ex Rel. Sanders, a case addressing when the federal False Claims Act applies to whistleblower claims submitted to a private contractor working on a government project, Cincinnati attorney James B. Helmer Jr. tried to make his argument simple.

"This case is not an outlier on the ends of this statute," said Helmer, senior partner and president of the Cincinnati office of Helmer, Martins, Rice & Popham Co. "It is squarely in the middle of [it]."

"I wish you had said that in your brief because we could have saved ourselves a lot of reading," Scalia quipped, drawing laughter.

Chuckling at Congress

Sometimes it is the lawmakers across the street from the Court who bear the brunt of Scalia's punch lines.

"I think that Congress was more than likely aware of the fact that 18 U.S.C. §844 did treat arson in this manner," argued Leondra Kruger, assistant to the U.S. Solicitor General, during January oral arguments in Begay v. U.S.

"I don't think Congress had the slightest idea," Scalia deadpanned, to the delight of the audience.

Sometimes state government is the object of the justice's jokes. During January oral arguments in the tax case MeadWestvaco Corp. v. Illinois Department of Revenue, Scalia asked Illinois Assistant Attorney General Brian Barov: "Can you tax me on stock that I own on companies that do business in Illinois?"

"In the abstract, yes, you could, Your Honor," Barov replied.

"Do you know any state that tries to do it?" Scalia asked.

"No, Your Honor, but again, Your Honor…," Barov said, before Scalia cut him off.

"That's extraordinary!" Scalia said, invoking one of his favorite terms. "I don't know of any tax that a state could possibly impose, that no state has imposed!"

Often Scalia injects himself into his hypotheticals, to humorous effect. During January oral arguments in Virginia v. Moore, a case considering the extent of police search and seizure powers, Scalia put such a scenario to Stephen McCullough, the deputy state solicitor general of Virginia.

"Suppose I think that my neighbor next door is growing marijuana and I have probable cause to believe that, all right?" Scalia asked McCullough, who argued that evidence from a search incident to an arrest – an arrest that turned out to be illegal under state law – should still be admissible where probable cause existed.

"So I go in and search his house," Scalia continued, "and sure enough, there is marijuana. And I bring it to the police's attention, and they eventually arrest him. Is that a lawful search?"

"If there is state action," McCullough replied.

"I'm a state actor, I guess," Scalia said coyly, causing laughter. "You know, a Supreme Court Justice should not be living next door to somebody growing marijuana. It doesn't seem right."

The justice didn't stop there.

"So any federal employee can go crashing around conducting searches and seizures, so long as he has probable cause?" he asked.

"That's correct," McCullough said.

"That's fantastic!" Scalia responded, drawing more laughs. "Do you really think that?"

"I think if there is state action, it doesn't matter that you're wearing a badge or that you've gone through the police academy," McCullough responded.

"[What if] you are an administrative law judge at the Bureau of Customs?" Scalia asked. "It doesn't matter?"

"I think that's right," McCullough said.

"What about a janitor?" Scalia continued. "A federally employed janitor? His neighbor is growing marijuana, and he's just as offended as a Supreme Court justice would be. Can he conduct a search?"

"I think if he's doing it on behalf of the state, the answer is yes," McCullough answered.

"Wow," Scalia finished.

In the end, McCullough's persistence in the face of Scalia's wisecracking paid off: the justice authored the Court's decision finding in his favor.

Questions or comments can be directed to the writer at kimberly.atkins@lawyersusaonline.com