A study published March 14 shows a high correlation between gender and whether Supreme Court justices will interrupt or be interrupted by their colleagues during oral arguments.
The study, which will be published in the University of Virginia Law Review this fall, was conducted by Professor Tonja Jacobi from the Pritzker School of Law and J.D. candidate Dylan Schweers. The two found that of all interruptions occurring during oral arguments between the 2004 and 2015 terms – the Roberts Court – as well as the 1990 and 2002 terms, females were interrupted in 32 percent of the total interruptions despite composing an average of 24 percent of the justices for those cases. For the same data set, female justices only interrupted 4 percent of the time.
The idea came to Schweers while in Jacobi’s class studying the 2015 court term. Even in the selection of oral arguments studied in that class, he noticed the pattern.
“The first oral argument I listened to, I was blown away with the number of times the male justices interrupted a female justice mid question,” Schweers said. “Anyone listening to the 2015 Court term would be struck with the amount of times.”
Matt Monahan, a Pritzker J.D. candidate and former editor for the Northwestern University Law Review, was in Jacobi’s class together with Schweers.
“My initial impression was they got something there if they can do the manual labor to build the data set because you just don't have that type of information sortable when you look or listen to an oral argument,” Monahan said. “My thought was if that happened, they could get a really impressive dataset, which they did.”
Psychologists have known that women are more likely to be dominated by men in all contexts of speech, including one-on-one, in groups, at work and in social atmospheres, Jacobi and Schweers learned from their preliminary research prior to the study.
“The expectation is that the more powerful the woman, the less she'll be interrupted, and yet here we find this very strong effect," Jacobi said.
One particular example Schweers highlighted occurred during a three-minute period during the oral argument in McDonnell v. United States.
Elena Kagan: Mr. — Ruth Bader Ginsburg: The word — the word that Justice Breyer is concerned about comes from Birdsall, with intent to influence their “official action.”
Two minutes later: Elena Kagan: Can I — Anthony M. Kennedy: I agree with Justice Breyer.
One minute later: Elena Kagan: Can I ask — John G. Roberts, Jr.: Sure — sure. It depends on who’s making the referral or the call, right?
In order to explain the significance of their findings, Jacobi and Schweers proved that oral arguments were important and that by interrupting the justices of the opposite gender or other ideology, the Court’s decision could be impacted.
“Justices use [oral arguments] to persuade their colleagues through their questions that they gather information to reach the best outcome of the case during oral argument,” Jacobi said.” It's also the only part of the decision-making process that the public gets to see ... If the female justices are being interrupted, it's affecting all of those parts, if not to mention that it's making the Court look a little gender biased when we're only seeing that aspect when the men are interrupting the females more.”
Although no other studies have been made on the subject to confirm or oppose their findings, Jacobi and Schweers believe no study could contradict their study because of the strictly empirical method they used. In the transcripts of the oral arguments, interruptions are indicated by “--” at the end of the interruptee’s line and at the beginning of the interrupter’s line.
However, Jacobi and Schweers acknowledged that other factors could affect one’s likelihood of being interrupted.
"It's a short space of time, so it's competitive,” Jacobi said. “It's a competitive arena for people to have their voices heard … But that would explain a lot of interruptions. It wouldn't explain gendered interruptions. It's hard to avoid the psychological side of things.”
The study also considered political ideology and seniority on the Court. They found that conservative justices interrupted liberal justices two and a half times as much as liberals interrupted conservatives, still less statistically significant as gender differences. They also accounted for seniority, which held some statistical significance, but was still 30 times less powerful at explaining the interruption disparity.
Jacobi and Schweers also discounted the theory that the late Justice Antonin Scalia caused a sudden increase in interruptions when he joined the Court in 1986. Across the years they studied, they found a gradual increase in all interruptions and that Justice Anthony Kennedy was the most prolific interrupter.
Justice Scalia and Justice Stephen Breyer together interrupted each other more than any other pair. Justice Scalia’s interruptions of Justice Breyer accounted for 50 percent of his total interruptions of colleagues and Justice Breyer’s interruptions of Justice Scalia accounted for 56 percent of his.
They considered the Roberts Court because of the readily available transcripts online. They looked at the 2002 Court term when the only two female justices were Justice Sandra Day O’Connor, then a moderate conservative, and Justice Ruth Bader Ginsburg, a liberal. They considered the 1990 Court term when only Justice O’Connor was on the Court and was more conservative.
Jacobi and Schweers were concerned by the number of instances where advocates answering the justices’ questions, particularly males arguing for the conservative side, interrupted the female justices. While justices are allowed to interrupt each other, Court rules state that counsel cannot speak over justices and that they must yield to the justices when interrupted by them.
“Not only are they subordinates in the Court, but they're also told not to,” Schweers said. “They're only ignoring it to female justices. That's very concerning. There's something very wrong that in terms of just the behavior and how you act in the courtroom.”
Schweers was also concerned with the implications beyond the Supreme Court.
“This is the highest level,” Schweers said. “We didn't study the lower courts, but if it's happening at the Supreme Court, we can imagine it's happening at lower courts, and that's very troubling as well.”
The study also found that when female justices entered the Court, they were more likely to use polite framing in the female register, including statements such as “please,” “excuse me,” “okay” and “thank you.”
“It's a way of saying 'Excuse me, I'm going to ask you a question' before asking the actual question,” Jacobi said. “It it's also an opportunity for somebody to interrupt before you've even got into the substance of your question ... What we found is that most men come into the Court using that phrasing at a very low level and what happens overtime is that women drop down to the same level as men.”
Another phenomenon which Jacobi and Schweers saw, though were unable to quantify, was that male justices would restate something a female justice had stated prior and receiving credit for it instead.
In Boeing Company v. United States: Kent L. Jones: I’m sorry. I meant the reg. The 861-8 reg was … was formulated with the calculation of combined taxable income expressly in mind, and we know that both by the terms of the reg 861-8(f)-- Sandra Day O’Connor: Well, how do we know that? Anthony M. Kennedy: Getting back to Justice Scalia’s question, and I think it relates to what Justice O’Connor is asking too, is . . . is your answer to the last argument, that a transaction-by-transaction basis . . . we would . . . would clearly not have this problem . . . is we clearly would have this problem and we’d look at 861, and you’d lose there too?
Jacobi and Schweers also did not consider race or religion in their study.
The Supreme Court has not addressed the study, but Jacobi and Schweers hope they can eventually make a difference by having male justices realize they interrupt female justices or by having Chief Justice John Roberts enforce the rules of the Court so advocates do not interrupt the justices.
“It's too soon to see if actual behavior changes, but we've certainly hit a nerve,” Jacobi said. “We've been profiled in about 20 or more national and international newspapers and online forums. We've been asked to write multiple op-eds and shorter analyses, and people are talking about it a lot."
Monahan was struck by the how many people are addressing the study within the law community and beyond.
“Law reviews are not kitchen table or study or train reading for most people,” Monahan said. “It's a nice and deserved surprise that people are reading this article, journalists are reading this article, it's getting press from big media outlets and, at a minimum, they're starting a discussion about whether this phenomenon exists, why, and what institutionally can the Supreme Court do and other institutions as well.”