Who’s Interrupting Whom at the Supreme Court

Interruptions in Supreme Court oral arguments have increased in the past 25 years, but not because the court has become more polarized. Rather, they’ve gone up as more women joined the top court’s bench, a new study found this week.

It’s not that women interrupt more often — in fact, they interrupt far less. It’s that the women on the court are far more likely to be interrupted than their male counterparts.

That’s according to an analysis of oral argument transcripts from the high court’s 1990, 2002 and 2015 terms, conducted by Tonja Jacobia, a professor at Northwestern University’s Pritzker School of Law with Dylan Schweers, one of her students. They broke apart the ways that gender, seniority and ideology affect who is interrupting whom on the bench. Gender was by far the most influential factor, they found. 

The findings square with previous studies showing women are interrupted more than men across all professional settings. In the case of the Supreme Court, it shows that women face these barriers even when they reach the most powerful position in their profession. What’s more is that the study found it wasn’t just fellow justices who interrupted their women counterparts, but lawyers who argued their cases before the Supreme Court.

“This is surprising, both because the court’s guidelines explicitly prohibit advocates from interrupting Justices, and because the Chief Justice is supposed to intervene when this occurs,” write Jacobi and Schweers.
 
The terms analyzed in the study allowed the authors to consider all four women who have sat on the court: retired Justice Sandra Day O’Connor and sitting Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. As more women have joined the court, the more they have been interrupted, according to the study.

 

WASHINGTON, DC - MARCH 18: (L-R) U.S. Supreme Court justices Elena Kagan, Sonia Sotomayor and Ruth Bader Ginsburg, participate in an annual Women's History Month reception hosted by Democratic House Leader Nancy Pelosi in the U.S. capitol building on Capitol Hill in Washington, D.C. This year's event honored the women Justices of the U.S. Supreme Court: Associate Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. (Photo by Allison Shelley/Getty Images)

U.S. Supreme Court justices Elena Kagan, Sonia Sotomayor and Ruth Bader Ginsburg, participate in an annual Women’s History Month reception hosted by Democratic House Leader Nancy Pelosi in the U.S. capitol building on Capitol Hill in Washington, D.C. (Photo by Allison Shelley/Getty Images)

 

“This suggests that rather than getting acclimated to having to share the bench with women, men may be becoming more hostile to the incursion of women into their traditional domain,” the authors note. “This finding is consistent with social science literature showing that traditional elites, such as legislators, feel threatened by the entry of nontraditional members into their realm and act more aggressively to the interlopers in an attempt to protect their privilege.”

Here are some of the paper’s key takeaways:

  • Justices Kagan and Sotomayor, the junior women on the court, are interrupted more than any other justices on the bench, and this often happens when they begin their questions by saying the name of the person they are speaking to, or by saying “may I…” or “can I ask…”.
  • Seniority does mitigate some of the effects of gender, but much of that has to do with the fact that the women on the court adapt their speaking styles over time so as to prevent being interrupted. Justices O’Connor and Ginsburg both adopted more aggressive styles of questioning over their careers and, over time, were interrupted less.
  • There are many instances in which male Justices interrupt a female Justice, recognize it, and yet continue with their question.  
  • Men who appear before the court (as lawyers) interrupt Justices at a higher rate than women, despite the fact that court rules prohibit advocates from interrupting the Justices at all. “Astonishingly, the most common interruption in 2015 is male advocate interrupting a female Justice: Sotomayor,” the study found.
  • Many people have attributed the court’s overall increase in interruptions to the late Justice Scalia’s “particularly disruptive style,” but, as it turns out, he was not the top interrupter on the bench. Justice Kennedy was most likely to interrupt other Justices, the authors found. “Thus, Scalia was not an outlier, just a particularly fractious Justice,” they write.
  • Conservative Justices interrupt liberals more than vice versa.   
  • According to the authors of the study, these factors might all contribute to more conservative coalitions on the court, and a reduction in the influence of women and younger Justices. “It could make it much harder for women to make arguments and win votes during the post-conference process,” they write. “At the very least, a woman’s unequal opportunity to ask questions and complete statements during oral arguments could make it far more difficult for women to gather their thoughts, engage with the advocates, and clarify points that were disputed in the briefs.”

Write to Big Law Business with a news tip, inquiry or comment at biglawbusiness@bna.com.

blb newsletter

 

Related posts

Top