Mr. Liptak, carefully checking reliable sources by not calling me, prefaced his story by noting, “The Supreme Court gives lawyers who argue before it a little guidebook. One tip: ‘Attempts at humor usually fall flat.’” (Ditto in the NYT, Mr. L., if you don’t mind my saying so.) Mom, fortunately, is past the point of asking “Funny ‘ha‐ha’ or funny ‘odd’?”
The brief is hilarious, and please do not tell my mother I didn’t write it. What I did was sign it. The brief was written by scholars at the Cato Institute, a libertarian think tank, where I hold the position of Mencken Research Fellow (unpaid and worth it). Cato did not ask me to write their brief for the same reason that you do not ask me to perform your appendectomy.
“Okay, I’ll need a knife, and … and … a spoon? Better wash my hands first. And I have to have whiskey because alcohol is both an antiseptic and an anesthetic. Give some to the patient. I’ll take a nip myself.” Etc.
Ilya Shapiro, with a J.D. from the University of Chicago Law School, is Senior Fellow in Constitutional Studies at Cato and editor‐in‐chief of the Cato Supreme Court Review. He often files amicus briefs, especially in cases where constitutionally guaranteed rights are imperiled. But these briefs are serious in tone even though Ilya is funny in person.
He’s also self‐effacing, saying, “There are people who know more about Constitutional law than I do, and there are people who are funnier than I am, but I do occupy the very small area of overlap in that Venn diagram.”
The Venn diagram seemed like the only proper approach to a law that would make you a criminal in Ohio for saying that Buckeye president William Howard Taft was so fat his wife had to grease the doorframe and tell him there was a banana cream pie in the Blue Room to get him into the White House.
The fight‐a‐laugh‐with‐a‐laugh brief was Cato Legal Associate Gabriel Latner’s idea. He wrote the first draft. Cato Research Fellow Trevor Burrus added research. And more jokes. Then Ilya Shapiro took over. I was asked to read it and give it my endorsement because I am an expert on being run out of Ohio. Ask my mother.
Politico posted a condensed version of the brief, and I shared the byline with Ilya. On the “Above the Law ” blog David Lat called it the “Best Amicus Brief Ever.” (Albeit that’s a low “bar”—notice how I casually toss in legal jokes now that I’m arguing a case before the Supreme Court.) And a lawyer friend of mine congratulated me on what he said was the first legal brief in history to go viral.
Herewith a sample (and good stuff even if I do say so my not‐self):