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When a man argues against two beautiful ladies like this, they are going to have the last word

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Floyd's joke and the ensuing silence

During oral arguments before the United States Supreme Court in Roe v. Wade, a case concerning abortion rights, Texas Assistant Attorney General Jay Floyd began his remarks with a reference to his opposing counsel, Sarah Weddington and Linda Coffee: "Mr. Chief Justice and may it please the Court. It's an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word." The joke was met with silence and, according to an observer, visible anger from Chief Justice Warren E. Burger. Floyd's attempt at humor is often considered "the worst joke in legal history", and has been cited by commentators including Justice Antonin Scalia as a cautionary tale about attempting humor, particularly scripted humor, in court.

Floyd struggled in the rest of his remarks. The court was short-staffed at the time and ordered the case reargued after two vacancies were filled; Floyd was replaced by his colleague Robert C. Flower in the second argument. The court ultimately ruled in favor of plaintiff Jane Roe (Norma McCorvey), a landmark decision that established a general right to an abortion for 49 years, until it was overturned in 2022 in Dobbs v. Jackson Women's Health Organization.

The joke

Roe v. Wade arose from the attempt of a pseudonymous "Jane Roe" (Norma McCorvey) to obtain an abortion in the U.S. state of Texas. Abortions were illegal in Texas in most cases, leading to a legal battle through the federal courts, nominally against Henry Wade, the Dallas County district attorney. The Supreme Court of the United States granted certiorari after the Northern District of Texas ruled in McCorvey's favor, and heard oral arguments on December 13, 1971.[citation needed]

McCorvey was represented by two women, Sarah Weddington and Linda Coffee. Weddington was 26 years old[1] and four years out of law school when she argued before the Supreme Court in Roe.[citation needed] As counselor for the petitioner, she spoke first. After capably responding to an array of questions from the justices,[2] she reserved a few minutes of her time for rebuttal, meaning that she would speak briefly after Jay Floyd, the Texas associate attorney general who represented Wade.[3] Only seven women had spoken before the court in the preceding twelve months; there was no women's restroom in the lawyers' lounge.[4] According to court artist Betty Wells and Justice Harry Blackmun, Weddington looked attractive.[5] Coffee sat beside her at the table for petitioners' counsel. A number of abortion rights advocates sat in the audience.[4]

After being introduced by Chief Justice Warren E. Burger, Floyd began, "Mr. Chief Justice and may it please the Court. It's an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word." About three seconds of total silence ensued.[6] Margie Pitts Hames, another abortion rights lawyer who was present, later said: "I thought Burger was going to come right off the bench at him. He glared him down. He got the point right away that this was not appropriate in that court."[7]

Floyd faltered in the rest of his remarks, sometimes contradicting himself or speaking based on personal opinion. At at least two junctures, the audience laughed at his expense.[8] Ryan A. Malphurs in Communication Law Review assesses that, due to the initial blunder, Floyd "struggled to gain momentum".[9] However, Justice Harry Blackmun, who privately ranked all lawyers' arguments using letter grades,[10] gave Floyd a B to Weddington's C+.[4]

Weddington later said that she thought the incident "unnerved [Floyd] somewhat"[11] and that he "had argued too many cases in rural Texas, where a little humor would have been received better".[12] Justice Antonin Scalia (who was not on the court at the time) and scholar Bryan A. Garner attributed the faux pas to "what [Floyd] probably considered courtly Southern humor".[13]

References

Citations

  1. ^ Prager 2021, p. 90.
  2. ^ Christopher 2019, p. 317.
  3. ^ Christopher 2019, p. 318 n. 72.
  4. ^ a b c Prager 2021, p. 91.
  5. ^ Prager 2021, pp. 90–91. "So as to better recall the argument of every lawyer come before him, the justice jotted a quick physical description of him or her. As Weddington began now to speak ... [w]rote Blackmun: 'large blond hair, rather pretty, plump.'"
  6. ^ Roe argument 1971, 34:12. Sant 2013. Christopher 2019, p. 318.
  7. ^ Garrow 1994.
  8. ^ Christopher 2019, pp. 318–319. Regarding the instances of laughter:
    • "He argued that the Does did not have standing because they were not pregnant, but then incongruously asserted that Roe lost her standing when she became pregnant, saying, 'I think she makes her choice prior to the time she becomes pregnant.' Justice [Byron] White retorted, 'Maybe she makes her choice when she lives in Texas,' and the courtroom erupted in laughter. As the laughter peaked, Floyd, sounding affronted (though he may have been affecting it), asked, 'May I proceed?'" (pp. 318–319, emphases original; see Roe argument 1971, 41:38).
    • "In addition to his assertion that neither pregnant nor non-pregnant women had standing, he alternately argued that life begins at conception, but he did not know when life began for the purposes of the abortion statute, saying, 'Mr. Justice, there are unanswerable questions in this field'—again, to audible chuckling in the gallery" (p. 319; see Roe argument 1971, 56:21).
  9. ^ Malphurs 2010, p. 48.
  10. ^ Owens 2023.
  11. ^ Friedell 2022. Weddington 1992.
  12. ^ Christopher 2019, p. 318.
  13. ^ Scalia & Garner 2008.

Sources

  • Christopher, Catherine Martin (2019). "Nevertheless She Persisted: Comparing Roe v. Wade's Two Oral Arguments". Seton Hall Law Review. 49: 307–352. Retrieved 16 March 2024.
  • Friedell, Deborah (23 June 2022). "A Piece of Pizza and a Beer". London Review of Books. Retrieved 16 March 2024.
  • Garrow, David J. (1994). Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade. New York City: Macmillan. pp. 525–526. ISBN 9780025427556.
  • Malphurs, Ryan A. (2010). "'People Did Sometimes Stick Things in my Underwear': The Function of Laughter at the U.S. Supreme Court". Communication Law Review. 10 (2): 48–75. Retrieved 16 March 2024.
  • Owens, Ryan J. (November 2023). "Order effects and oral argument at the US Supreme Court". Social Science Quarterly. 104 (6): 1222–1236. doi:10.1111/ssqu.13310.
  • Prager, Joshua (2021). The Family Roe: An American Story. New York City: W.W. Norton. ISBN 9781324036074.
  • "Roe v. Wade" (Argument audio and transcript). Oyez Project. Retrieved 16 March 2024.
  • Sant, Geoffrey (26 July 2013). "8 horrible courtroom jokes and their ensuing legal calamities". Salon. Retrieved 16 March 2024.
  • Scalia, Antonin; Garner, Bryan A. (2008). Making your case: the art of persuading judges. St. Paul, Minn., U.S.: Thomson/West. pp. 186–187. ISBN 9780314184719. OL 21172969M.
  • Weddington, Sarah Ragle (1992). A Question of Choice. New York City: Putnam's. p. 119. ISBN 0399137904. OL 35663441M.
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