On December 13, 1971, during oral arguments before the United States Supreme Court in the abortion rights case Roe v. Wade , Texas assistant attorney general Jay Floyd prefaced his remarks with a reference to his opposing counsel, Sarah Weddington and Linda Coffee: "It's an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word." [1] The joke was met with silence in the courtroom and, according to abortion rights lawyer Margie Pitts Hames, visible resentment from Chief Justice Warren E. Burger. Widely viewed as sexist [2] and often considered "the worst joke in legal history", [3] Floyd's attempt at humor has been cited by commentators including Justice Antonin Scalia as a cautionary tale about comedy in court.
Floyd did not recover from the faux pas and struggled in the rest of his remarks, twice being laughed at by the audience. Justice Harry Blackmun cited poor arguments by both Floyd and Weddington among his reasons for supporting an order to reargue the case the following term. On reargument, Floyd was replaced by his supervisor Robert C. Flowers. The court ultimately ruled in favor of plaintiff Jane Roe (Norma McCorvey), a landmark decision that established a right to an abortion. Roe was overturned in 2022 in Dobbs v. Jackson Women's Health Organization .
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. [4]
McCorvey was represented by two women, Sarah Weddington and Linda Coffee. Weddington was 26 years old when she argued before the Supreme Court in Roe. [5] She had been one of five women in her graduating class of 250 at University of Texas Law School two years prior. [6] Only seven women had spoken before the court in the preceding twelve months; there was no women's restroom in the lawyers' lounge. [7] According to court artist Betty Wells and Justice Harry Blackmun, Weddington looked attractive. [8] Coffee sat beside her at the table for petitioners' counsel. A number of abortion rights advocates sat in the audience. [7] As counselor for the petitioner, Weddington spoke first. She spoke with an argument style that Mairi N. Morrison in the UCLA Women's Law Journal described as "classically female and extraordinarily effective". [9] She reserved a few minutes of her time for rebuttal, meaning that she would speak briefly after Jay Floyd, the Texas assistant attorney general who represented Wade. [10]
After being introduced by Chief Justice Warren E. Burger, Floyd began,
Mr. Chief Justice and may it please the Court. [lower-alpha 1] 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. [1] 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." [12] May It Please the Court, a narrated selection of Supreme Court oral arguments, describes Burger as "annoyed" and the resulting silence as "embarrassed". [13]
Floyd was audibly flustered and struggled to recover from the initial blunder. [14] He faltered in the rest of his remarks, sometimes contradicting himself or speaking based on personal opinion. [15] At two junctures, the audience laughed at his expense, which he appeared to take exception to. [16] However, Justice Harry Blackmun, who privately ranked all lawyers' arguments using letter grades, [17] gave Floyd a B to Weddington's C+. [7] Weddington later said that she thought the incident "unnerved [Floyd] somewhat". [18]
The joke is widely considered to have been sexist and disrespectful. [2] Hames called it "very chauvinistic". [12] Weddington felt that Floyd "had argued too many cases in rural Texas, where a little humor would have been received better". [19] Similarly, 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". [20]
Elizabeth A. Delfs in the Women's Rights Law Reporter holds Floyd's joke as an example of complimentary comments about women attorneys' appearances that suggest their success comes from being attractive rather than being competent. [21] Ruth Colker in the Harvard Women's Law Journal argues that the joke betrayed "[t]he lack of respect for women embedded in Texas's position". From this she concludes that abortion rights activists were right to pursue constitutional litigation, because "real dialogue is not possible when a base of respect does not exist". [22]
Rachel L. DiCioccio and Laura E. Little in Temple Law Review see the joke as a "throwback to an earlier era (pre-1960s)" and write that Floyd, in attempting to use identification humor (connecting with the all-male panel of justices), instead engaged in the more divisive practice of differentiation humor (mocking Weddington and Coffee for being different from the men). [23] From a semantic perspective, Serge V. Gavenko writes, while the comment was at face value positive, it violated Grice's maxims with respect to relevance and was incongruous given the importance of the proceedings. [24] Bret Rappaport describes the joke as an instance of "breaking the genre" (i.e. the social construct between litigator and judge), a high-risk, high-reward strategy that in Floyd's case "represents clearly what not to do". [25] He contrasts this with parts of judicial dissents by Chief Justice John Roberts and Judge Alex Kozinski that were, respectively, written like a crime novel and a conversation between defendant and attorney. [26]
After six months of internal deliberations, the court ordered for the case to be reargued. Justice Blackmun supported the order in part because of his dissatisfaction with both Floyd and Weddington's oral arguments. [28] On reargument, Texas instead sent Floyd's supervisor, Robert C. Flowers. [29] The case was subsequently decided in favor of McCorvey, establishing a constitutional right to abortion, which persisted until the decision was overturned in Dobbs v. Jackson Women's Health Organization in 2022. [4]
Floyd's joke has become a textbook example of inappropriate use of humor in legal settings: [19] Scalia and Garner, in their book Making Your Case: The Art of Persuading Judges, cite the mishap to illustrate why litigators should not tell prepared jokes, which "almost invariably bomb". [20] The flubbed joke is used for comic relief in Robert Schenkkan's play All the Way [30] and in the introduction to episodes of the Supreme Court podcast Strict Scrutiny . [31] Jerry Goldman, the founder of the Oyez Project, has called it "[t]he most compelling example of silence pregnant with meaning". [32]
In 2013, Geoffrey Sant in Salon described it as the "Worst Joke in Legal History", claiming the title over seven other contenders including Don West's knock-knock joke during the trial of George Zimmerman. [33] Sant refers to the joke's deployment, in the high-profile context of Roe, as "spoiled icing on the collapsed cake", [34] and cites one law blogger who refers to it as the worst joke of all time outright. [35] Sant's characterization has since been repeated in a New York Times obituary of Weddington; [36] in The Independent , [37] SCOTUSblog , [38] The Washington Post , [39] and the blog of the National Constitution Center; [4] and by Becca Andrews in the book No Choice . [40] Janet S. Kole in the ABA Journal differs somewhat, holding that the worst legal joke is another of Sant's picks, a Supreme Court litigator who in Glickman v. Wileman Brothers & Elliott, Inc. told Justice Scalia "you don't want to give your wife diarrhea" by buying green plums. [41]
Roe v. Wade, 410 U.S. 113 (1973), was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States generally protected a right to have an abortion. The decision struck down many abortion laws, and caused an ongoing abortion debate in the United States about whether, or to what extent, abortion should be legal, who should decide the legality of abortion, and what the role of moral and religious views in the political sphere should be. The decision also shaped debate concerning which methods the Supreme Court should use in constitutional adjudication. The Supreme Court overruled Roe in 2022, ending the constitutional right to abortion.
Norma Leah Nelson McCorvey, also known by the pseudonym "Jane Roe", was the plaintiff in the landmark American legal case Roe v. Wade in which the U.S. Supreme Court ruled in 1973 that individual state laws banning abortion were unconstitutional.
Planned Parenthood v. Casey, 505 U.S. 833 (1992), was a landmark decision of the Supreme Court of the United States in which the Court upheld the right to have an abortion as established by the "essential holding" of Roe v. Wade (1973) and issued as its "key judgment" the restoration of the undue burden standard when evaluating state-imposed restrictions on that right. Both the essential holding of Roe and the key judgment of Casey were overturned by the Supreme Court in 2022, with its landmark decision in Dobbs v. Jackson Women's Health Organization.
The United States abortion-rights movement is a sociopolitical movement in the United States supporting the view that a woman should have the legal right to an elective abortion, meaning the right to terminate her pregnancy, and is part of a broader global abortion-rights movement. The movement consists of a variety of organizations, with no single centralized decision-making body.
Lawrence v. Texas, 539 U.S. 558 (2003), is a landmark decision of the U.S. Supreme Court in which the Court ruled that U.S. state laws criminalizing sodomy between consenting adults are unconstitutional. The Court reaffirmed the concept of a "right to privacy" that earlier cases had found the U.S. Constitution provides, even though it is not explicitly enumerated. It based its ruling on the notions of personal autonomy to define one's own relationships and of American traditions of non-interference with any or all forms of private sexual activities between consenting adults.
Harry Andrew Blackmun was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1970 to 1994. Appointed by President Richard Nixon, Blackmun ultimately became one of the most liberal justices on the Court. He is best known as the author of the Court's opinion in Roe v. Wade.
Webster v. Reproductive Health Services, 492 U.S. 490 (1989), was a United States Supreme Court decision on upholding a Missouri law that imposed restrictions on the use of state funds, facilities, and employees in performing, assisting with, or counseling an abortion. The Supreme Court in Webster allowed for states to legislate in an aspect that had previously been thought to be forbidden under Roe v. Wade (1973).
Sarah Catherine Ragle Weddington was an American attorney, law professor, advocate for women's rights and reproductive health, and member of the Texas House of Representatives. She was best known for representing "Jane Roe" in the landmark Roe v. Wade case before the United States Supreme Court. She also was the first female General Counsel for the US Department of Agriculture.
Doe v. Bolton, 410 U.S. 179 (1973), was a decision of the Supreme Court of the United States overturning the abortion law of Georgia. The Supreme Court's decision was released on January 22, 1973, the same day as the decision in the better-known case of Roe v. Wade.
Rust v. Sullivan, 500 U.S. 173 (1991), was a case in the United States Supreme Court that upheld Department of Health and Human Services regulations prohibiting employees in federally funded family-planning facilities from counseling a patient on abortion. The department had removed all family planning programs that involving abortions. Physicians and clinics challenged this decision within the Supreme Court, arguing that the First Amendment was violated due to the implementation of this new policy. The Supreme Court, by a 5–4 verdict, allowed the regulation to go into effect, holding that the regulation was a reasonable interpretation of the Public Health Service Act, and that the First Amendment is not violated when the government merely chooses to "fund one activity to the exclusion of another".
Hodgson v. Minnesota, 497 U.S. 417 (1990), was a United States Supreme Court abortion rights case that dealt with whether a state law may require notification of both parents before a minor can obtain an abortion. The law in question provided a judicial alternative.
Gonzales v. Carhart, 550 U.S. 124 (2007), was a landmark decision of the U.S. Supreme Court that upheld the Partial-Birth Abortion Ban Act of 2003. The case reached the high court after U.S. Attorney General, Alberto Gonzales, appealed a ruling of the U.S. Court of Appeals for the Eighth Circuit in favor of LeRoy Carhart that struck down the Act. Also before the Supreme Court was the consolidated appeal of Gonzales v. Planned Parenthood from the U.S. Court of Appeals for the Ninth Circuit, whose ruling had the same effect as that of the Eighth Circuit.
Linda Nellene Coffee is an American lawyer living in Dallas, Texas. Coffee is best known, along with Sarah Weddington, for arguing the precedent-setting United States Supreme Court case Roe v. Wade.
Bellotti v. Baird, 443 U.S. 622 (1979), is a United States Supreme Court case that ruled 8-1 that teenagers do not have to secure parental consent to obtain an abortion.
United States v. Vuitch, 402 U.S. 62 (1971), was a United States Supreme Court abortion rights case, which held that the District of Columbia's abortion law banning the practice except when necessary for the health or life of the woman was not unconstitutionally vague.
Roe vs. Wade is a 1989 television film written by Alison Cross about the landmark 1973 United States Supreme Court decision Roe v. Wade. It was directed by Gregory Hoblit and stars Holly Hunter and Amy Madigan.
Whole Woman's Health v. Hellerstedt, 579 U.S. 582 (2016), was a landmark decision of the US Supreme Court announced on June 27, 2016. The Court ruled 5–3 that Texas cannot place restrictions on the delivery of abortion services that create an undue burden for women seeking an abortion. On June 28, 2016, the Supreme Court refused to hear challenges from Wisconsin and Mississippi where federal appeals courts had enjoined the enforcement of similar laws.
June Medical Services, LLC v. Russo, 591 U.S. ___ (2020), was a United States Supreme Court case in which the Court ruled that a Louisiana state law placing hospital-admission requirements on abortion clinics doctors was unconstitutional. The law mirrored a Texas state law that the Court found unconstitutional in 2016 in Whole Woman's Health v. Hellerstedt (WWH).
Sandra Cano, better known by the legal pseudonym "Mary Doe," was the plaintiff in the lawsuit case Doe v. Bolton (1970), the companion case to Roe v. Wade (1973) which legalized abortion in the United States. Cano held anti-abortion views and claimed she had been manipulated by her lawyer, Margie Pitts Hames. She repeatedly attempted to have the decision overturned. She also undertook anti-abortion activism, with Norma Jane McCorvey among others, and filed a Friend of the Court brief seeking to limit partial birth abortions.
Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), is a landmark decision of the U.S. Supreme Court in which the court held that the Constitution of the United States does not confer a right to abortion. The court's decision overruled both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), returning to individual states the power to regulate any aspect of abortion not protected by federal statutory law.