During oral arguments Tuesday, Justice Stephen Breyer was trying to get the crux of the issue of whether school sexual harassment claims under §1983 are barred by Title IX.
“[The plaintiffs] say, look, we want to sue an individual in his official capacity. That’s why we want to bring our 1983 suit,” Breyer said to attorney Kay Hodge, who represented the school district. “And then you reply, but there are bars here of collateral estoppel — claim preclusion — whatever it is.”
“Issue preclusion,” Hodge says, helping Breyer out.
“They all have new names,” Breyer deadpanned. And the crowd laughed.
That was just one instance of Breyer bringing mirthful levity to the Supreme Court’s hallowed halls this week. Breyer was by far the funniest justice this week, making the crowd laugh six times – and closing the gap between him and Chief Justice John G. Roberts, Jr. in the overall funny standings. By comparison, the usually hilarious Justice Antonin Scalia only drew two laughs this week, as did Roberts and Justice Anthony Kennedy. But Justice Ruth Bader Ginsburg proved she still has a sense of humor – she is on the board for the first time this term, leaving only ever-silent Justice Clarence Thomas laughless.
Here are the laugh standings after five weeks of oral arguments:
Justice Antonin Scalia: 25
Chief Justice John Roberts: 17
Justice Stephen Breyer: 15
Justice David Souter: 9
Justice Anthony Kennedy: 8
Justice John Paul Stevens: 4
Justice Samuel Alito: 2
Justice Ruth Bader Ginsburg: 1
Justice Clarence Thomas: 0 (Thomas hasn’t made a remark during oral arguments since Feb. 22, 2006).