Jay Wexler is a professor at Boston University School of Law, where he teaches courses on cannabis law, environmental law, and the First Amendment. His books include “The Odd Clauses: Understanding the Constitution Through Ten of Its Most Curious Provisions,” “Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars,” and a novel called “Tuttle in the Balance.” He’s also known for tracking laughs in oral argument transcripts. You can follow him on Twitter @SCOTUSHUMOR.
My questions are in bold. Professor Wexler’s answers are in plain text.
What kind of a teenager were you?
What kind of a teenager was I? I don’t know how to answer that. I mean, I studied a lot. But what I really wanted to do was play football. The only problem with that is I have no athletic talent or speed or strength or anything, so it seemed unlikely. I did work out really hard before my freshman year and made it on the freshman football team, and that was exciting. It was sort of the high point of my entire life. But I was a terrible football player, and I got cut from the team my second year.
I was irreverent. I worked on the newspaper, and we put out a spoof of the newspaper called the Satanic Review that made fun of the teachers. Many of the teachers got mad, and I got kicked off the debate team and we had to make our own team.
When did you start gravitating towards comedy, and why?
I was always the class clown goofball guy. I started my comedy career as a puppeteer, putting on puppet shows in elementary school. Usually spoofs of movies like Friday the 13th. Then in high school, when I was on this newspaper, I wrote some ridiculous humor columns, most famously my review of the various Slurpee flavors from the Slurpee machine in the cafeteria. That remains one of my best works, I believe.
In college, all I wanted to do was get on the Harvard Lampoon. All I wanted to do in life was to go write comedy somewhere. The problem was, I’m not good at writing comedy under pressure. I can be funny, but it has to rise out of some situation. I can’t just sit there and think, “Ooh. Let me come up with a humor piece.” And so I never made it onto the Harvard Lampoon. They cut me multiple times, rendering my college career depressing and full of regret [laughs].
After that, I kind of shelved it and didn’t write much comedy until my clerkship years. I wrote a ridiculous novel when I was clerking called “Arrivederci, Loser,” which would be hard to explain. But it’s about this giant blueberry muffin who walks and talks, and it gets more ridiculous from there. It’s only a novel in the sense that it’s 200 pages of words. I wasn’t able to write any good humor until I started teaching. I would write as a counterweight to writing the serious law review and academic articles that I had to publish to get tenure.
I’m surprised you had that much time to write during your clerkships.
Clerking was a full-time job, but it wasn’t more than a full-time job. The job that was harder was my first clerkship for Judge Tatel on the D.C. Circuit, because that involved more intensive back-and-forth work. He would edit opinions twenty times and call on Sunday with some idea about a word choice on page 43.
During my Ginsburg clerkship, she really knew — and still obviously knows — what she wanted to do. She probably liked having the clerks, but I’m not sure we were necessary. We drafted things according to what she asked us to do, and then she rewrote them and went through three or four drafts. There was some free time there. I lived about a block from the Court, and I would go home for lunch and watch an old sitcom called “Good Times.” Then I’d make my way back. There were some days of course in which I worked very hard, but mostly it was a normal job. I was able to write in the evenings. I wasn’t spending four hours a day writing or anything — if you were to read my novel, you could tell that it didn’t take too much effort. The blueberry muffin says, “Hi, I’m a blueberry muffin.”
How did your clerkships inform or strengthen your interest in church/state law?
I did graduate work in religion before I went to law school, and I was an East Asian studies major in college, where I had gotten interested in Chinese philosophy and religion. So I’ve always been interested in religion. It was something that I always knew I wanted to do, and I wrote about it when I was a law student. My student note was about teaching evolution in public schools.
In fact, during my clerkship years, and even the two years I worked at the Justice Department, I barely worked on religion at all. The Justice Department is where I got interested in administrative law and environmental law, but the religion stuff was pre-law, really.
How did you get interested in religion in college?
When I was in high school, my father worked in Tokyo for a couple years. I visited him one summer in Tokyo and really liked Japan. Then when I got to college, I decided to major in East Asian Studies. I was going to study Japanese society or something, but if you’re a Japan person, they make you take a class in China, and vice versa. After taking a class on China, I became fascinated by Daoism and Buddhism. And that’s when I started being interested in religion and philosophy and Zhuangzi. I wrote my senior thesis on Zhuangzi, who was a Daoist sage. He didn’t believe in reason or rationality; he thought everyone should be spontaneous and go with the Dao rather than thinking systematically. He didn’t like language. So he was kind of an absurdist character, whom I loved.
In fact, I wrote about Zhuangzi in my novel, “Tuttle in the Balance,” which is about a Supreme Court justice who has a mid-life crisis. He gets into the Zhuangzi through a girlfriend of his, and it undermines his ability to do his job. Because if you’re a Supreme Court justice and you stop believing in the power of words to convey meaning, it makes it difficult to adjudicate disputes. I thought that was funny [laughs]. Richard Posner thought it was funny. So I’m not the only one.
Sorry to bug you about your RBG clerkship, because I’m sure you get these kinds of questions a lot. How did you prepare Justice Ginsburg for oral argument?
For her, we wrote bench memos. They weren’t particularly long. We had to read the briefs, read the amicus briefs, recommend how the case should come out, and suggest a couple of questions for oral argument that might be helpful. The memos were generally fifteen pages — maybe longer if it was a complicated case or shorter if it was a less complicated case. She read it, we chatted about it, and that was really what we did to prepare her for the oral argument. She had already been on the bench by then for eighteen years, so she knew most of the time what she thought about the issue. I mention that because it was a big contrast with the clerkship I had the year before, where the judge was new to the bench. So everything was a new, exciting, surprising thing, and he had to work through it all for the first time. That was difficult; it required more preparation and more conversation prior to the oral argument. For RBG, it wasn’t all that intensive.
That’s one of the reasons clerking was so interesting. It’s the kind of job where you could — and some people did — work eighteen hours a year. But I never felt like you had to do that, so I didn’t. I had to get to the novel [laughs]. Blueberry muffin. I’m really hoping that blueberry muffin gets into this interview, okay?
How much does Justice Ginsburg care about hiring clerks with the same politics or philosophy?
I guess I don’t really know the answer to that. What I remember is that she interviewed very few people, so the people she interviewed were the people she hired. It wasn’t like she was trying to hire from a big group and figuring out who had more in common with her views. She did rely on people at different law schools that she trusted to recommend clerks, and these people knew who she might like. I can’t think of any conservative clerks that RBG had, although Peter Huber — he clerked a long time ago — is kind of a libertarian. But I can’t think of many clerks who didn’t agree with her, so there must have been something that made it so that she got clerks who agreed with her. I just don’t remember it being like, “let’s find someone who wrote this kind of note or wrote this kind of argument.” She never said, for example, “I really like her, but I think she’s too conservative.” I can’t even imagine her saying that. But maybe there was something in the screening process that I didn’t see that did the same thing.
I will tell you, though, that when I interviewed with Justice Ginsburg, I had written my note about evolution and creationism, and the main case that my note talked about was called Aguillard. There was also a case in front of the Supreme Court that term called Aguilar. RBG started asking me about Aguilar, and I figured she was asking about the case I wrote about in my note. I started talking about Aguillard, and went on for a minute or two before I realized what I was doing. I realized she was talking about this other case — which was also a religion case, by the way — so I was able to pivot somehow to make it work. I got the job I guess, so it must have worked. But it was horrifying to realize in the middle of the interview that you were talking to a Supreme Court justice about the wrong case.
When I interviewed a former Scalia clerk, he said that all of Scalia’s papers and case files were accessible to the clerks. For example, he could read the Lawrence v. Texas case file whenever he wanted. Did you have that kind of access to Justice Ginsburg’s papers, and if so, which ones were most interesting to you?
I don’t think we did. If we did, I’m sure we would have wanted to look at the papers in United States v. Virginia, but I don’t remember us ever doing that. That either means we didn’t have access to it or we didn’t know we had access to it. My guess is that we didn’t have access to it, because I’m pretty sure in an idle moment we would’ve flipped through that thing. I’m trying to even think where the files and cases were.
The thing about her chambers is that it was very formal, in a sense. She was at arms length. She was in her office, the office door was closed, and it wasn’t like she wandered back into the clerks’ chambers and sat on the couch and threw up her feet and chatted about the cases. That’s kind of what my clerkship before was like. If she wanted to talk with you, she would buzz you on the phone. Another really scary thing. You’d be sitting there working on a memo or whatever, and then the phone would go “BZZZZ!” Your heart would leap, and you’d be like, “Oh no!” It wasn’t the kind of place where you might find yourself in her office next to a box of files about something interesting. My understanding is that Scalia’s chambers were much more rough-and-tumble, where everyone was going everywhere and arguing about things. But I wasn’t there, so I wouldn’t know.
For the past fourteen years, you’ve been tallying laughs in Supreme Court oral argument transcripts. What have you learned?
I’ve learned that people are much more interested in it than they ought to be. For me, it was a humor piece. I wrote the original thing in like three hours and thought no one would even look at it. It ended up getting picked up by the New York Times and was the front page story. All of a sudden everyone was asking about it, and I sort of pretended that it was more serious. But really, all it is is a joke from my perspective. So the fact that people still think it’s interesting or funny, even though the joke has been made for fourteen years, is pretty surprising to me.
There’s a new law review article coming out, a major piece in the Vanderbilt Law Review about the function of laughter — or something very serious. And the authors say, “Wexler has the pioneering work, but he underestimated the importance of laughter studies.” Every time somebody does that, I just roll my eyes. I’m sure there’s something academically important there, but for me it’s a joke. I don’t think it shows that justices are funny or not. I don’t think it shows that justices are human or not human. But it’s fun to watch, and it’s fun to see people interested in it to and to make riffs about it.
You’ve said that the most interesting oral argument “from a humor perspective” is FCC v. Fox Television Series. What are some other funny arguments that my high school readers might appreciate?
There was the argument about fish, Yates v. United States, which is about if you throw the fish that’s too small into the water, is that a violation of some securities fraud law. That was mildly funny. If you’re looking for funny things, though, the last place you should look is Supreme Court oral arguments. For the readers out there who are looking for something funny, try Bojack Horseman.
Once I thought about counting the number of laugh lines in a Chris Rock comedy special and comparing it to the number of laugh lines at oral argument just for fun. I didn’t do that, but I think Chris Rock might win in that head-to-head competition.
One argument against cameras in the courtroom is that the justices already joke around too much — they play too much to the audience — and that cameras would only exacerbate the problem. What do you think of that argument?
I think that there should definitely be cameras in the Supreme Court. I don’t think it would affect anything. Nobody who’s not interested in the law would watch it for more than two minutes, and the people who are interested would benefit from it. I can’t imagine there’s any lawyer, for example, who’s going to do something different in the way he or she argues a case because it’s on camera. And there’s no way that the justices would act differently. I just can’t imagine that. So my view is, put the cameras in.
It’s possible that there will be another vacancy on the Supreme Court within the next five-ish years. From a comedy perspective, who would be the best nominee?
Pam Karlan. I don’t think she’d ever get nominated, but she is the most genuinely funny person who would be a great justice. She is in fact hilarious, and also a legal genius. Were she put on the Court by a Democratic president, she would quickly rise to the top of the standings. Now, I predicted that about Elena Kagan, and it hasn’t quite worked out yet. But she’s got time, and I think she will refine her craft and give Breyer a run for his money.
On your now-defunct Odd Clauses blog, you made “original jurisdiction standings,” where you listed the win-loss records of each state in State vs. State cases. If you had unlimited time, what other standings would you put together?
Oh, boy. That’s a great question, but I don’t know if it’s one I could answer. If I was able to come up with the answer to this question, then I would be the type of person who would have gotten onto the Harvard Lampoon and went on to SNL. Then we wouldn’t be having this interview. Womp womp womp. What if there was a small band in the Supreme Court that had a drum, so when Justice Breyer made one of his dumb jokes they would go, “Badum-bum”? Just a little band in an orchestra pit, right below where the justices sit. Okay, never mind.
Or maybe there could be a band in the basketball court above the courtroom. Apparently you can hear stuff up there, like when Justice White would play basketball. But the sound would be more muffled.
I have heard about Justice White playing basketball, and he would throw elbows around because he was a professional athlete. I’ll tell you this story. When I was in law school, I was on the moot court board, and Justice White was coming to judge the finals of the moot court competition at Stanford. I was tasked with a friend of mine to go to the airport and pick him up. We went in my little Honda Civic to the airport, and we didn’t even know what he looked like. So we got a piece of paper, and we wrote “Justice White,” and we held it up and there he was! I drove like twenty-two miles an hour on the way home so as to avoid crashing and causing a front-page story: “Dumb Law Student Crashes With Supreme Court Justice in Passenger Seat.” That was fun.
You could write a Green Bag piece about that.
If I remembered more about it!
Switching gears a little bit: In your book, The Odd Clauses, you analogized certain clauses to the animal kingdom, like shrews and wombats. What would the Establishment Clause be if it were an animal?
The Establishment Clause… how about a sponge? It would be a sponge because the way it’s been read, it’s like a porous wall between church and state instead of a strong wall. It lets the church and the state mingle through it like the water in the sponge. Thank you.
In an interview with Americans United, you said that you’re “worried any time the court gets a church-state case.” How worried are you about the Bladensburg cross case?
I’m pretty worried about the case. I sat there during its oral argument, with the justices debating for seventy minutes about whether a forty-foot cross is a Christian symbol or not. If you step back from that, especially if you’re somebody like me who’s not Christian, it’s just ridiculous. It’s absurd to the point of comedy. The idea that the Establishment Clause would allow the government to allow a gigantic cross on its property to me is a very easy question that does not need seventy minutes of argument. So yes, I’m worried. The question is how narrowly or broadly they’ll write this opinion, because surely they’ll uphold the cross. I hope it will be a very narrow opinion saying, “This cross was there for seventy years and it has the names of the fallen soldiers on it and it’s specifically about World War I” and any other nonsense they can come up with to limit their decision. That would be good. If they say, “The cross, in addition to being a Christian symbol, can also be a symbol for [whatever they make up], and therefore it’s okay for the government to put up crosses everywhere,” then that would be horrifying. I am pretty worried about how they’re going to write it. I think they’ll go narrow, but I won’t be shocked if they go really broad. And then I’ll feel sad.
They might kill the Lemon test, right?
I don’t care if they kill the Lemon test. Unless what they mean by killing the Lemon test is killing the endorsement test — then I would feel bad. The Lemon test itself is silly, and I don’t think it does anything. If they get rid of the endorsement test or the endorsement expansion of Lemon, that would be a big mistake. I hope they don’t do that, but who knows. The Chief is seeming to me pretty reasonable and minimalist and consensus-building, so I hope that he has a good influence on how this case comes out. It should come out narrowly and not get rid of some of the decent jurisprudence that the Court has come up with in this area.
The Court hasn’t struck down anything under the Establishment Clause since 2005, so I don’t expect this Court to interpret the Establishment Clause in any strong way ever. It’s just a matter of how much precedent they get rid of. I would like them to keep the word “endorsement” in there, so that later on when hopefully we get justices who are more sensitive to this kind of thing, they can use the endorsement test to strike down some of the more egregious symbols on public property.
What should high school students know about the endorsement test, and which church/state cases should they read?
High school students should know that the endorsement test by its terms prohibits the government from putting up a display or symbol that, from the perspective of a reasonable observer, endorses a religious belief, either compared to some other religion or compared to nonreligion. The second thing they should know is that even though that’s what the Supreme Court says, in fact many things that clearly endorse religion have been found to be totally okay, like the “Under God” in the Pledge of Allegiance, or “In God We Trust” on money, or the Ten Commandments on the Texas capitol grounds.
As for what they should read if they’re interested in the endorsement test… I would recommend the case of ACLU v. Allegheny, except it’s like 97 pages long and has eight opinions. So that might not be a good idea. I guess they ought to read Van Orden v. Perry, which is the Ten Commandments case. They should read both the majority and the dissent. Then when high school students read Breyer’s opinion, they’ll go “What!?” like everybody else.
Other interviews conducted by Anna Salvatore: Michigan Supreme Court Justice Elizabeth Clement, University of Arizona law professor Andrew Coan, UChicago law professor Justin Driver, legal journalist Chris Geidner, SCOTUSblog founder Tom Goldstein, former Solicitor General Neal Katyal, court artist Art Lien, New York Times Supreme Court correspondent Adam Liptak, UCI Law Professor Leah Litman, litigant extraordinaire Fane Lozman, Princeton professor Robert George, former Court writer Linda Greenhouse, legal writing expert Ross Guberman, Georgetown professor Shon Hopwood, NPR reporter Carrie Johnson, Fix the Court Director Gabe Roth, IU Maurer Law Professor Ian Samuel, and Lawfare editor-in-chief Benjamin Wittes.