It is early days, but we thought it worth a preliminary
look at the justices’ and the advocates’ relative participation at oral
argument in the 2019 Term. The graph below shows the number of words spoken in
by each group, in aggregate, in the 15 cases heard so far this Term, and in the
71 cases heard last Term, for context.
A comparison of words spoken at oral argument in the 2018 and 2019 Terms by the Advocates and the Justices
As illustrated, there is considerable variation in
participation between cases, with some controversies inspiring more words from
both the justices and the advocates, some from one or the other, and some quiet
cases, such as the very first case, Kahler v. Kansas, a murky death penalty case.
But the overall trends are, so far, indistinguishable from last Term.
The picture is more interesting when looked at broken down
by individual justice, as in the next graph. Last Term, we showed that Justice Kavanaugh gained
momentum after a quiet start, following his highly controversial confirmation
hearings. That trend has continued this Term, with Kavanaugh overtaking fellow
conservatives, Chief Justice Roberts and Justice Gorsuch, though not yet Justice
Alito. No word from Justice Thomas this Term as yet.
A comparison of words spoken at oral argument in the 2018 and 2019 Terms, by Justice.
Also apparent is that Justice Ginsburg continues to increase her verbal
contribution at oral argument, a good sign of her improving health. She is
still relatively quiet compared to the other liberal justices. Indeed, other
than Justice Ginsburg, we see the same
liberal/conservative divide as last Term. The liberal justices speak more than the
conservative justices, even as the conservatives dominate the Court in terms of
decision-making.
We will report more as the Court says more throughout the
Term.
ScotusOA took a break from our regular schedule last week to team up with Timothy Johnson and Eve Ringsmuth to write an op-ed for the Washington Post about the impact of the Court’s new two-minute rule. The new guideline that came into effect this Term states that the Justices will “generally” hold their fire during the first two minutes of oral argument, allowing attorneys to have their say in a “quiet zone” before the justices interrupt with their questions and comments.
As we note in the op-ed: “Given that the court heard only nine cases in the first month of the term, any analysis of the effect of the new rule is preliminary. “ Nonetheless, the preliminary results are fascinating! We will leave two of the figures from the op-ed here as a teaser and suggest that readers take in the full piece on the Washington Post website: https://www.washingtonpost.com/outlook/2019/11/01/look-whos-talking-less-supreme-court-justices/
The Effect of the Two Minute Rule in Oral Argument based on the October 2019 Cases (Words Spoken) As published in the Washington Post, November 1, 2019 at 5:00 a.m. CDT. The Effect of the Two Minute Rule in Oral Argument based on the October 2019 Cases (Pace of Speech) As published in the Washington Post, November 1, 2019 at 5:00 a.m. CDT.
The four of us (Jacobi, Johnson, Ringsmuth, and Sag) plan to follow up with a more robust analysis once we have more data.
When a case is really close, really close, on the textual evidence, and I — assume for the moment I’m with you on the textual evidence. It’s close, okay? We’re not talking about extra-textual stuff. We’re — we’re talking about the text. It’s close. The judge finds it very close. At the end of the day, should he or she take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that — that Congress didn’t think about it — and that — that is more effective — more appropriate a legislative rather than a judicial function? That’s it. It’s a question of judicial modesty.
~ Justice Gorsuch in Harris Funeral Homes v. Equal Employment Opportunity Commission (with interruptions removed for readability)
Last week, in Bostock v. Clayton County and R.G.
& G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission,
the Court addressed whether discrimination on the basis of sexual orientation
and gender identity, respectively, is discrimination on the basis of sex, and
thus contrary to Title VII. There has been much
commentary on these cases; we are now able to take a look at the numbers,
both to predict the outcomes of the cases based on the disagreement gap, and to
empirically examine the content of some of the arguments.
ScotusOA prediction based on the oral argument in Bostock v. Clayton County (October 8, 2019)ScotusOA prediction based on the oral argument in RG & GR Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (October 8, 2019)
Our predictive model for Bostock
shows Justice Alito clearly on the side of the respondent and Justice
Ginsburg equally clearly on the side of the petitioner. The model is
surprisingly equivocal about Roberts, Breyer, and Kavanaugh, and it suggests
that Sotomayor, Kagan, and Gorsuch are leaning in favor of complainant petitioner.
According to our model of Harris Funeral
Homes, the justices lined up slightly differently in the transgender case. It
shows Roberts and Gorsuch strongly in favor of petitioner (i.e. favoring a
narrow reading of title VII) and Breyer, Kagan, and Ginsburg strongly favoring
respondent. The model we use to predict votes based on oral argument is not
particularly well suited to combined arguments, and this combined argument was
especially confused. For example, the justices had multiple questions about
bathrooms and gender identity for Pam Karlan in the first argument about the
gay skydiver that would have made a lot more sense directed to David Cole in
the second case about the transgender funeral home employee.
Others have suggested that Justice Gorsuch could be the
potential swing vote in these cases. The reason for this is that, as a professed
textualist, he could be expected to vote on the side of the Title VII plaintiffs, for whom the textual argument appears
clear: if a woman who is married to or attracted to a man is treated
differently to a man who is married to or attracted to a man, that would is
clearly a difference based on sex. Similarly, if a woman who chooses to dress
or identify as a man is treated differently to a man who chooses to dress or
identify as a man, that is also a difference based on sex. Of course, as a
conservative, Gorsuch’s ideological preferences pull him in the other
direction. As such, these two cases are good tests of just how much of a
textualist Gorsuch really is, or alternatively, how much of an ideologue. Our
empirical analysis of the argument in Bostock v. Clayton County is
encouraging for the plaintiff, but not in Harris Funeral Homes.
Of course, if Gorsuch votes to deny gay and transgender
individuals the protection that Title VII’s plain text evidently affords them, he
will not admit that he is not being a textualist. Rather, as the initial quote
suggests, Gorsuch is claiming that the cases are very close, and that it is
permissible to stray from textualism under such conditions. The word cloud
pictured below is based on what Gorsuch had to say in Harris Funeral Homes v. EEOC. It illustrates Gorsuch’s emphasis on
the “close question” and signals that he is likely to vote for a narrow
atextual reading of Title VII.
Word cloud based on Justice Gorsuch’s contributions to oral argument in RG & GR Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (October 8, 2019)
Text or pretext?
There are two massive problems with Gorsuch’s position:
first his claim that the textualist case is a close one is implausible, and second,
he is not asking the appropriate question.
First, the textualist argument on the other side is not
simply weak; rather, it defies ordinary doctrinal logic. The argument goes that
discrimination on the basis of sexual orientation or gender identity is not
discrimination on the basis of sex because the question is: Is it lawful to treat
a gay man differently to a gay woman, or a trans man differently to a trans
woman? However, this phrasing of the question only works if you presuppose the
answer to the question asked of the Court: whether using sexual orientation or
gender identity as a basis for distinguishing is lawful under the statute. To phrase
the question in terms of whether you are differentiating between different gay
people in the right way presupposes that it is okay to treat gay women
different to straight women, and gay men different to straight men. The
textualist argument is not close; it is not even close to being close.
But the more damning problem is that a justice is not a
textualist if he or she follows textualism only for the easy cases, and then if
the case is “close” to the line, he or she can then turn to some other
methodological approach to determine the difficult cases. The whole point of a
judicial methodology is to apply it to differentiate between cases under and
over the line. Looking to the text
simply to ascertain whether a purported meaning is close enough to the penumbra
of the text to justify then turning to purposivism to fill in the detail is
contrary to the very notion of textualism. Put another way, it is not
textualism if the key question is not whattool should be applied
but rather when should the justice to apply it.
Consequently, gay and trans activists, and those who support
them, placing their hopes on Gorsuch being true to his purported judicial
ideology is likely to lead to disappointment. In fact, if Gorsuch is going to support that
side of the arguments to any extent, the models make clear that it will be to
support the gay complainants but to disappoint the trans complainants. This is
in spite of the fact that the textual argument is much stronger in Harris
than Bostock: the complainant in Bostock literally was fired for
wearing a dress, which would have been permitted to anyone born a woman. The
members of the Court, like much of society, have had more time to get used to
the idea of people being gay than people being trans, and so find it easier to
recognize and reject discrimination against gay people than trans people. To
the extent Gorsuch will stray from his ideology, it would be in favor of the
text but it will hinge more on that greater tolerance of gay people, and
consequently greater tolerance of gender discrimination against trans people.
Prediction:
Title VII plaintiffs (Petitioner in Bostock, Respondent in Harris): Breyer, Ginsburg, Kagan, Sotomayor
Title VII defendants: Alito, Gorsuch, Kavanaugh, Roberts, and Thomas.
Most likely to switch: Gorsuch, but only in Bostock.
In its first case of the 2019 Term, the Supreme Court heard
oral argument in Kahler v.
Kansas, on the question of whether insanity is constitutionally
required to be an available defense to capital murder. Petitioner
argued that, in particular, the test of whether a defendant knows right
from wrong is constitutionally required, and so Kansas’s consideration of
insanity solely as to whether a mental defect prevents the defendant from
forming the requisite mens rea, plus consideration at the penalty stage, is
inadequate.
One easy way to know that a particular justice is not buying
an argument like Petitioner’s is when the justice gives a detailed recitation
of the almost always grisly facts of the death penalty case. Justice Alito did
just that, reminding everyone that Petitioner Kahler not only killed his
estranged wife and her mother, but executed his two daughters in a seemingly
premeditated and cruel fashion, telling one to stop crying as he slaughtered
her and her family—except for her brother, who had shown more sympathy for
their father and so was spared the carnage, if not the trauma. But predicting
Justice Alito’s likely vote in death penalty cases is usually pretty easy;
predicting some of the other justices’ votes is more difficult, and requires
more sophisticated tools. The figure below provides an assessment of the likely
votes of each of the justices, based on everything they said at the oral
argument, as well as what they have said in every other case they have heard in
their time on the Bench.
ScotusOA prediction based on the oral argument in Kahler v. Kansas
Like the Supreme Court, ScotusOA took the summer off from
empirically analyzing Supreme Court oral arguments. As such, a quick reminder
(or an introduction for the uninitiated) is warranted to explain how we
generate our predictions. We measure various aspects of each justices’ behavior
at a given oral argument, and how that behavior is tilted to one side or the
other. We call this the disagreement
gap: the difference in the treatment of the two sides is a strong predictor
of how the justices will vote. For instance, interrupting
one side more or talking more during the time of one side are both strong
predictors of ultimately voting in favor of the other side. We then put those
variables in the context (using Bayesian updating) of each justice’s behavior
in general at oral argument, to create a prediction for each justice, based on
their particular style at oral argument generally.
The Kahler oral argument illustrates the value of
taking this contextual (Bayesian) approach: Justice Alito was seemingly the
strongest advocate for the Respondent’s position—and we use the term “advocacy”
advisedly, based on prior
research showing that the justices engage in considerable amounts of advocacy during oral argument. Yet, Justice Ginsburg pips
him by 1% in her likelihood to vote for Respondent. Now 1% is obviously not
statistically significant, but the fact that the liberal Justice Ginsburg is
measuring as effectively equally likely as the conservative Justice Alito to
vote against a death penalty defendant is significant. This prediction
is a product of that aforementioned context: Justice Alito is very often
extremely uneven in which side he directs most of his questions and comments to,
whereas Justice Ginsburg is very rarely so tilted to one side. In the Kahler
oral argument, she only spoke during the time of Petitioner, and that makes us
confident that she will vote for Respondent.
A look at the substance of Justice Ginsburg’s questions
supports this conclusion. She opened the questioning (after the first
application of the new
Supreme Court rule that gives advocates two minutes of uninterrupted speaking
time) with a tough challenge for Petitioner’s advocate, Sarah Schrup:
whether a judgment of “guilty but insane,” which would result in
institutionalization rather than imprisonment or the death penalty, would
satisfy the Constitution. She followed up with hypothetical variations that
prevented Schrup from answering the question by looking to collateral harms,
and then Ginsburg asked about whether the history was more complex than Schrup
was implying. All of these were indications of her position, but the strongest
indication was the fact that she didn’t ask equally tough questions of the other
side, as she typically does.
In terms of predicting the case rather than individual
justice’s votes, three justices were harder to analyze on the basis of oral
argument: the Chief Justice, Justice Kavanaugh, and the perennially silent
Justice Thomas. (Thomas was in fact absent due to illness. He will apparently
participate in last Monday’s cases on the basis of the briefs and the
transcripts.) Thomas is easy to predict in a similar contextual way, but
looking at his votes, which overwhelmingly favor the state in death penalty
cases. But the two justices most
likely to be the median of the Court, Roberts and Kavanaugh, were far more
evenhanded than any of the other justices in their questioning and other conduct.
Roberts asked tough questions of both Schrup and Toby Crouse,
the advocate for Kansas, but asked nothing of the more persuasive advocate for
the government’s side, Elizabeth B. Prelogar, representing the United States.
She directly answered the tough questions that Crouse had struggled with—most
memorably, Justice Breyer’s question of how Kansas can justify excusing by
reason of insanity someone who commits murder because he deliriously thinks his
victim is a dog, but executing a person who deliriously believes that a dog
commanded him to commit the murder. Prelogar may have satisfied the Chief’s
concerns with that side of the argument. Thus, although the numbers show him
close to 50:50 but potentially tilting for Petitioner, we predict him more likely
to vote for Respondent.
Kavanaugh was more focused on the detail of doctrine and
history, and hammered both sides with significant challenges. Whether assessed
qualitatively or quantitatively, Kavanaugh’s questions do not reveal his likely
vote in this case. Based on the oral argument alone, he really is too close to
call. In terms of looking to past opinions, Kavanaugh was not involved in one
of the two big death penalty cases last year, Madison v. Alabama. He voted
with the conservative majority in the other case, Bucklew v. Precythe, but
wrote a separate concurrence emphasizing the narrowness of the opinion—that is,
he rode a fine line in the case, and gave little away about his general
proclivities in this area. We expect something similar in this case: either a
narrow majority opinion in favor of Respondent written by Kavanaugh, or a
narrowing concurrence by Kavanaugh.
Prediction:
Petitioner: Breyer, Kagan, Sotomayor
Respondent: Alito, Ginsburg, Gorsuch, Kavanaugh, Roberts, Thomas
Full disclosure: Petitioner’s advocate, Sarah Schrup,
is a colleague of Tonja Jacobi’s at Northwestern Pritzker School of Law, and
Jacobi helped moot Schrup in preparation for the oral argument.
This week we have another guest blogger, a Northwestern Pritzker law student, Sydney Black. Sydney agreed to turn her excellent paper for Tonja Jacobi’s Supreme Court cases seminar into a ScotusOA post. In this post, Sydney uses content analysis to investigate Justice Brett Kavanaugh’s claim to be an originalist.
What we know so far: Kavanaugh’s claim to originalism not borne out
By Sydney Black
When asked at his
Supreme Court confirmation hearing whether he was an “originalist,” then-Judge
Brett Kavanaugh answered, simply and directly, “That’s
correct.” Yet some
suggested Kavanaugh would likely place far less value on history than the title
“originalist” would suggest. The natural question is: of the cases we have seen
so far, has Kavanaugh stood by his promise of originalism?
There are two ways
in which Kavanaugh could show his originalist colors: 1) agreement with the
Court’s self-described originalists, Justices Thomas
and Gorsuch, and disagreement with the Court’s greatest pragmatist,
Justice Breyer, demonstrated through voting or cross-referencing; 2) oral argument questioning focused on
originalist concerns, such as textualism and historical meaning, and avoidance
of pragmatic concerns, like practical consequences. A quantitative analysis of
Kavanaugh’s voting patterns, cross-referencing behavior, and oral argument
questioning suggests that Kavanaugh’s claim to be an originalist is quite dubious.
Voting Alliances – different
shades of conservatism
Looking first at his voting agreement with his different methodological brethren, Figure 1, below, depicts the number of times Kavanaugh voted with each justice, in all cases decided so far, and specifically in the most relevant cases for originalism, constitutional and statutory interpretation cases.
Justice Kavanaugh’s votes with other Justices in the 2018 Term (so far)
Overall, Kavanaugh
voted more times with the non-originalist conservatives, Chief Justice Roberts
and Justice Alito, than with either Thomas or Gorsuch. Kavanaugh also voted
more often with Breyer than Gorsuch. For constitutional and statutory interpretation
cases, where one might predict his originalist tendencies would be strongest, Kavanaugh
voted more times with Alito and Roberts than Gorsuch or Thomas, and more times
with Breyer than Gorsuch. In this way, Kavanaugh has shown a greater tendency
to vote with the Court’s non-originalist conservatives and moderate liberal pragmatist
than with the originalists, even for cases ripe for originalist analysis.
Cross-Referencing– everyone but the originalist(s)
Cross-referencing in oral argument is generally a sign of agreement between justices. Figure 2, below, illustrates the number of cross-referencing instances per justice in a selection of cases this term (N=21), overall and for constitutional cases.
Justice Kavanaugh’s cross-references to the other Justices in oral argument in the 2018 Term
Overall, Kavanaugh
referenced Justices Kagan and Breyer many more times than he referenced any other
justice, and notably more than three times as often as he referenced Gorsuch. Kavanaugh
also referenced the pragmatist conservative Alito and the formalist liberal
Justice Ginsburg more than Gorsuch. For constitutional cases, Kavanaugh referenced
Breyer, Kagan, and Alito more than Gorsuch. In this way, Kavanaugh’s
cross-referencing behavior signaled more support for the Court’s pragmatists and
two liberal justices than for the originalism inclined Justice Gorsuch
(cross-references to Justice Thomas are rare because he almost never speaks in
oral argument).
Oral Argument Questioning –
some content analysis
The types of questions Kavanaugh asked during oral arguments offers another means of examining his commitment to originalism. Reviewing the oral argument transcripts for the same selection of cases as the cross-referencing analysis, I identified and coded each question Kavanaugh asked for the mode of constitutional interpretation it reflected i.e. Textualism/Original Meaning, Structuralism, History/Precedent, Pragmatism, Miscellaneous. Figure 3, below, illustrates the number of questions Kavanaugh asked per mode of constitutional analysis as a percentage of overall questions (N=167).
Justice Kavanaugh’s questions and comments in oral argument in the 2018 Term, coded by mode of constitutional analysis
Kavanaugh asked significantly
more pragmatist questions than any other question type, including textualist/original
meaning questions. He also asked slightly more history/precedent questions than
textualist/original meaning questions. It could be argued that his
history/precedent questions are an expression of his originalism. In fact, in Gamble v. United States, Kavanaugh
describes stare descisis as “part of the
original understanding,” in sharp contrast to Thomas. However, it is telling
that Kavanaugh often inquired about precedent as a practical concern for reliance
on historical practice. In Carpenter v. Murphy, for example, Kavanaugh
stated, “stability is a critical value in judicial decision-making, and [in
overturning] we would be departing from that and creating a great deal of
turmoil.” Therefore, even if his history/precedent questions are consistent
with originalism, the results still show Kavanaugh’s strong concern with practical
consequences, which remains a departure from originalism.
The next two figures take a comparative look at Kavanaugh’s questioning, showing the number of questions asked by Gorsuch (Figure 4) and Kavanaugh (Figure 5) by mode of interpretation specifically in constitutional cases.
Justice Gorsuch’s questions and comments in oral argument in Constitutional cases the 2018 Term, coded by mode of constitutional analysisJustice Kavanaugh’s questions and comments in oral argument in Constitutional cases the 2018 Term, coded by mode of constitutional analysis
Like Kavanaugh, Gorsuch asked significantly more pragmatist questions than textualist/original meaning questions overall, suggesting there is no such thing as pure originalism. However, Gorsuch was significantly less likely to ask pragmatist questions and more likely to ask textualist/original meaning questions than Kavanaugh. Because Kavanaugh’s questioning remains more focused on pragmatic than originalist concerns, to a greater extent than Gorsuch’s, Kavanaugh’s questioning demonstrates his deviation from originalism and toward pragmatism.
Qualitative Analysis – who to
join in opinions?
Kavanaugh’s
behavior in two constitutional cases provides another view of his originalist
expression or lack thereof. While the Court in Timbs v. Indiana held unanimously that
the Excessive Fines Clause was incorporated against the states, Kavanaugh chose
not to join Thomas and Gorsuch in either of their concurrences, which both
argued on originalist grounds that the appropriate vehicle for incorporation
was the Privileges or Immunities Clause. This presented Kavanaugh with a low risk opportunity to support the
Gorsuch/Thomas brand of originalism: he didn’t have to join in dissent or write
alone in concurrence, all he had to do was join Gorsuch or Thomas in
recognizing their supposedly originalist interpretation of incorporation. Yet Kavanaugh
declined.
Similarly, in Garza v. Idaho, Kavanaugh declined to join the Court’s two self-identified originalists in an issue pertaining to original meaning. At issue in Garza was whether the presumption of prejudice in certain Sixth Amendment contexts applies when the defendant signs an appeal waiver. Thomas and Gorsuch, in dissent, challenged longstanding precedent and re-examined the original meaning of the Sixth Amendment. The fact that Kavanaugh declined to join them is not as surprising as in Timbs. During oral argument, Kavanaugh focused on pragmatic concerns, including whether there was any practical problem that would justify precluding the presumption. In this way, both Timbs and Garza show Kavanaugh’s willingness throughout his first term to set aside assertions over original public meaning in favor of pragmatism.
Looking Ahead
The evidence from Kavanaugh’s first term to date suggests he is not an originalist as that brand of judicial philosophy is commonly understood. Possibly, Kavanaugh’s latent originalism has been overshadowed by strategy and diplomacy in his rookie year; he may yet become more comfortable touting his originalism when he graduates from his freshman role. An alternative hypothesis is that Kavanaugh’s embrace of originalism was a political tactic to secure his nomination. Whatever his motivations may have been, the early cases suggest Kavanaugh is unlikely to fulfill his confirmation hearing promise and his tendencies toward pragmatism will continue.
This week we have a guest blogger, a Northwestern Pritzker law student, Maveric Searle, who developed a new measure of judicial ideology for a final paper in Tonja Jacobi’s Supreme Court cases seminar. He also applied it to the current Term, based on the limited decisions released so far, to answer the very pressing question of who we can expect to be the new median of the Court. Maveric has turned his paper into a ScotusOA post, providing the first take on the new ideological spectrum of the Roberts Court.
A new median
The retirement of Justice Anthony Kennedy
in 2018 represented a potentially pivotal moment in the modern history of the
Supreme Court. Kennedy had long held the spot of the median justice on the
Court. The median justice, whose vote is often the deciding vote in contentious
cases, is typically thought of as being the most powerful or the most
influential justice. Kennedy’s retirement represented not only the appointment of
a new justice, but also the opportunity for a new justice to fill the position
at the Court’s center. Chief Justice John Roberts is commonly seen as the favorite to become the new median justice. This
post analyzes the Court’s early rulings from the October 2018 Term to see if
Roberts has lived up to those expectations, or if the Court’s newest member,
Justice Kavanaugh, could be its new median.
Conceiving the Median: Agreeability and
Majoritarianism
The numbers above suggest that the
median is likely Kavanaugh or Roberts, each of whom has been in the majority at
a higher rate than their colleagues. Kavanaugh has a higher ranking than
Roberts, but importantly Kavanaugh did not participate in several cases this
term, and a dissenting vote in any one of those cases would have moved him
below Roberts.
Another straightforward approach is to
look at how often each Justice agreed with the other Justices. The median justice
should have a high agreement rate because, by virtue of being centrist, he or
she will generally agree with colleagues on either end of the spectrum more
often than will the opposite extreme justices.
Once again, Kavanaugh and Roberts are
duking it out for top spot, tied for who looks most likely to be the median in terms of average
agreeability rate. Given the similarities in both their rates of voting in the
majority and their average agreeability rating, a more sophisticated analysis
is needed to determine which of the two is the new median justice.
Ranking the Justices on a Left-Right
Ideological Spectrum
It is now well accepted who is a liberal
justice and who is a conservative justice, not only because the
justices are nominated and confirmed by increasingly polarized political actors,
but because each of the currently serving Justices has prior affiliations with
either the
Federalist Society or the American
Constitution Society. The key question is: what are the differences among
the liberals and among the conservatives? And in particular, with a new five
justice conservative majority, who will be the most moderate conservative
justice, and thus the median of the Court?
To identify the median justice by ideology
along a left-right continuum, the next measure examines how often each justice votes
with the conservative justices as compared to the liberal justices. Justices are
classified as liberal or conservative based on the political party of the
president who appointed them. It then counts how many liberal and conservative justices
each justice agreed with in each case (using the percentage of the ideological
bloc that the justice agreed with, to account for the fact that there are more
conservative than liberal justices).
In a unanimous decision, every justice would
agree with 100% of both the conservative and liberal justices. In a 5-4 ideologically
ordered decision, a conservative justice would agree with 100% of the
conservative justices and 0% of the liberal justices. In a case like Garza
v. Idaho—a 6-3
decision with Thomas, Alito, and Gorsuch dissenting—each justice in the
majority agreed with 40% of the conservatives (Roberts and Kavanaugh) and 100%
of the liberals. Each justice in the minority agreed with 60% of the
conservatives and 0% of the liberals. Justices are given weight for agreeing
with themselves to ensure that decisions with a lone dissenter have an impact
on the dissenting justice’s final score.
These percentages are then turned into an
aggregated 0–1 “liberal score” and an aggregated 0–1 “conservative score,” with
e.g. 60% agreement being a score of .6. A net ideology score is then determined
by subtracting the liberal score from the conservative score for each justice. Using
this method, unanimous decisions do not impact the final score because they
result in an equal increase to both the aggregated liberal and the aggregated
conservative score.
Finally, the net ideology scores are standardized
by taking the final score and dividing it by the number of non-unanimous cases
that each justice participated in. This yields a number between -1 and 1 for each
justice, who can now be ranked them from left to right.
The resulting ranking lines up well with common intuitions, with the possible exception of Justices Gorsuch and Alito: Gorsuch lying slightly to the left of Alito may surprise some, particularly given Gorsuch’s emphasis on originalism and Alito’s rejection of that methodological approach most commonly associated with conservatism.
However, the scores may be capturing some
nuance that would be missed by overly focusing on the two Justices’ rhetorical
approaches, as there are some areas where Gorsuch has shown himself to be more
liberal than Alito. For instance, in Biestek
v. Berryhill,
Gorsuch wrote a dissent that was joined by Justice Ginsburg. This dissent likely
represents the two formalists agreeing based on factors that were methodological rather than ideological. Given the limited
data available from the cases decided so far this Term, an unusual case like Biestek had a significant impact on
Gorsuch’s final score: this decision alone moves Gorsuch from slightly to the
right of Alito to slightly to the left. But Biestek
may be quite representative: when it comes to matters of fairness—a key concept
in the standard “underdog”–sympathetic model of liberalism—there is a strong
argument to be made that Gorsuch lies to the left of Alito in some areas.
Unlike the statistics on justice agreeability
and rate of voting in majority, the standardized ideology scores of Roberts and
Kavanaugh demonstrate a significant difference between the two Justices.
Although Kavanaugh has been in the majority at the highest rate, and he is tied
with Roberts in terms of average agreeability, Roberts’ ideology score puts him
distinctly to the left of Kavanaugh.
While it is still early in the
post-Kennedy era of the Court, and a number of the Court’s most controversial
cases have yet to be decided this term, this method suggests that Chief Justice
Roberts will in fact be the Justice to look to as the Court’s new median. The
early numbers suggest that we really are seeing “the Roberts Court.”
In this post, we continue to examine the role of
interruption at oral argument in the 2018 Term. In our last post, we
showed that the overall rate of justice-to-justice interruptions went down in
the 2018 Term, as did the gender imbalance of those interruptions. In this
post, we scrutinize who is interrupting and who is being interrupted at the
individual level. The data suggests that, in 2018 at least, gender is not the
only factor seemingly at play: seniority also seems to be an important factor
in this Term’s judicial interactions.
Interrupting versus
being interrupted: who is disproportionate?
The figure below looks at justice-to-justice interruptions. It shows the relationship between the rate of being interrupted and the rate of interrupting for each justice in the 2018 Term. We published a similar figure for the 1998-2016 and 2017 Terms in a previous post. This is a good way to assess whether someone is being interrupted because they simply talk a lot: if that were true for an individual justice, high rates of being interrupted would correlate with high levels of interrupting. The dashed 45° line represents parity between being interrupted as often as one interrupts. Thus, even though the data is presented in terms of raw number of interruptions, the 45° line effectively accounts for variation in the rate of each individual justice’s speech episodes. For instance, Justice Thomas sits at the zero point on both axes, since he rarely speaks. Justices who are interrupted more than they interrupt sit above and to the left of the 45° line (represented by solid red circles), justices who interrupt more than they are interrupted sit below the 45° line (represented by hollow black circles).
Consistent with the finding that
female justices are interrupted at significantly higher rates than male
justices, once again in the 2018 Term, Justices Sotomayor and Kagan were the
two justices most frequently interrupted by other justices. The figure shows
the raw number of interruptions for each axis: Sotomayor and Kagan were each
interrupted approximately 49% and 35% more often than the most interrupted male
justice, Justice Alito.
However, there is an obvious difference between Sotomayor
and Kagan. Sotomayor was once again the most interrupted justice in the 2018
Term, and she was interrupted by her fellow justices many more times than she
interrupted them. In contrast, Kagan interrupted her fellow justices even more
than she was interrupted. In previous years, this was not the case. Previously,
we found that Kagan was learning to
reduce her polite language—which seems often to simply make her easier to interrupt—but
she had lagged behind Sotomayor and other female justices in making this
adaptation. Kagan may be learning to more effectively stand up for herself at
oral argument.
The other striking result from the first figure is that,
unusually, there are two male justices who sit on the upper left side of the 45°
line. Both Justices Kavanaugh and Gorsuch were interrupted more than they
interrupted, which is atypical. Since these are the two most junior justices,
and Kagan and Sotomayor are the next two most junior justices, it seems likely
that there is a seniority effect in justice-to-justice interruptions at play in
the 2018 Term. In prior
research, one of us found that seniority was a statistically significant
factor in interruption rates—more senior justices interrupt more junior
justices at significantly higher rates than vice versa—however the effect in
substance was overwhelmed by the impact of gender (as it also was by ideology).
Although we have not yet conducted regression analysis for
the new Term, the figure suggests that seniority may have been more significant
this Term. But this does not mean gender is no longer significant. We note that
Kavanaugh and Gorsuch were interrupted only slightly more than half as many times
as Sotomayor and Kagan. Gender still seems to be heavily at play in terms of
who is interrupted, even though Kagan is breaking the pattern somewhat in terms
of who does the interrupting. (We do not want to make too much of Justice
Ginsburg’s lower rates of both interrupting and being interrupted, due to her
absence from some arguments. Previously, she was lower on both fronts.)
Advocate
interruptions of justices: improvement?
We see more or less the same pattern when we examine how
often the justices were interrupted by the advocates. The figure below shows
how often each justice was interrupted by one of the advocates, per thousand
words spoken by the justice. In contrast to previous
findings, there is no self-evident gender effect here. Seniority seems to
be at play as much as gender.
When looking at which advocates do the interrupting, we also see less of gender effect than was found in previous Terms. The figure below indicates which advocates interrupted the justices the most, normalized per thousand words.
Of significant interest, the number one interrupter on this
measure was a woman, Barbara Underwood. Underwood appeared in a particularly contentious,
and potentially significant, case, Department of Commerce v. New York, on the question of whether
federal government may include a citizenship question in the 2020 Census. Having
a woman in the number one spot is not the only shift: there does not appear to
be the previous gender pattern at all in the other advocates’ interruptions of
the justices in the 2018 Term, as the two genders are distributed quite evenly.
We think that the fact that women can now interrupt as much as men is a great
step forward, although technically advocates should never interrupt the
justices, according to the Supreme Court rules. This advance is particularly
important given our recent
finding that female advocates were given less of an opportunity to speak in
2018 oral argument than male advocates.
Technical notes:
Note that some advocates do not appear in the third figure,
as the transcript indicates that they did not interrupt at all during their
appearance/s.
When we talk about interruptions in this post, we include
any time one speaker interrupts another speaker as indicated in the transcript
by the “–” notation at the end of the line. Previously, we have differentiated
between quickly occurring interruptions, which may be accidental (called
“crossovers” to capture two people beginning to speak at almost the same
time), and more distinct interruptions, occurring when a speaker clearly has
the floor, capturing more explicitly impolite or deliberate interruptions. We
do not yet have the timestamps for this Term to make this distinction.
Consequently, there may well be instances where the transcript reflects an
interruption which some of our readers may feel was not “really” an
interruption. That may be so, however, readers should also consider that
perceptions of whether one speaker has interrupted another are affected by the
biases and expectations of the listener and we trust the court reporters to at
least be consistent. We have used the same definition of interruption in all of
the data in this post.
As we have now well
documented, there has long been a gender imbalance in the rate of
interruptions of female justices versus male justices. Previously,
we asked whether that imbalance had improved in response to the attention being
given to the Virginia Law
Review article that revealed this pattern, as both Justice
Sotomayor and Justice
Ginsburg had each suggested it had. As of OT2017, we found that it
had not. But an analysis of justice to justice interruptions from the 2018
Term suggests there has been improvement at the Court.
Female Justices are still disproportionately interrupted, but less so
The next two figures are based on our calculation of the
normalized rate of interruption for the male and female justices, per argument.
Given that Justice Thomas is virtually silent at oral argument and in light of
the fact that a number of arguments in the 2018 Term took place before an
eight-person bench, it is important to normalize the rate of interruption by
the gender ratio of the participating justices in each case. For example, where
Justice Ginsburg was absent and Justice Thomas was silent, we treated the Court
as comprised of two women and five men. We went back and applied the same
methodology to the oral arguments transcripts for previous terms, going back to
1998.
The figure immediately below shows the difference in the
normalized rate of interruption for the female justices compared to male
justices (orange bars). All bars that appear above the zero line mean that
women are interrupted more than men; bars below the line show the reverse. Adjusting
for their relative numbers on the Bench, the female justices were interrupted
at a higher rate than the male justices in every Term except for 2004 and 2005.
What is more, that difference was growing on average from 2006 to 2017. But the
2018 Term shows an improvement.
The 2018 Term was not only less gender imbalanced than the
extraordinary 2017 Term, the gender difference was also somewhat lower than in every
Term since 2011. Perhaps the change that Justice Sotomayor perceived, of an
improved and more civil environment at oral argument, is now manifesting more
clearly?
A recent improvement,
or a broader trend?
However, the difference in the normalized rate of
interruption may be less informative than the same information looked at as a ratio
of interruptions between men and women. The figure below shows the ratio of
interruptions of female versus male justices (blue bars): a Term measuring at 1
would have an equal number of interruptions of female justices and male
justices, normalized by their respective numbers on the Court.
Looked at in this way, not only is the 2018 Term a vast
improvement on recent years, it has a lower gender imbalance than any Term
since 2004, back when Justice Ginsburg was the sole woman on the Court. It also
suggests that perhaps our pessimism last year was unwarranted: this shows that
in terms of the ratio of interruptions, female to male interruptions also
dropped significantly in 2017, after the issue became one of public comment.
A more civil Court?
Although the difference in the normalized rate of
interruption between female and male justices (orange) went up in the 2017 Term
and down in the 2018 Term, the ratio of those same numbers (blue) went down in
each of those terms. What explains this difference between the orange bars and
the blue bars? The answer is that the number of justice to justice
interruptions is not constant, not by any means, as the next figure shows.
The 2018 Term was not only a less gender imbalanced term in
terms of interruptions, it was also seemingly more civil (or at least less
heated) than the 2017 Term. The rate of interruptions in 2017 was exceptionally
high, and 2018 saw interruptions drop somewhat. We do not want to overstate the
civility that represents: 2018 still saw the third highest level of
interruptions in the last 20 years, but the increase over previous years is
more in line with a general linear trend, rather than the exponential shift
that could have been inferred from last Term’s interruption levels.
We also have to be wary of reading too much into the lower
rate of justice to justice interruptions in the 2018 Term. The decrease in
interruptions might simply be attributable to the large number of cases where
at least one justice was absent—Justice Ginsburg through illness and Justice
Kavanaugh by joining the Court partly through the Term. In the next post we
will break down interruptions by justice.
One final point to note: remember that the 2004 and 2005
Terms were the only two terms in which men were interrupted more,
proportionally, than women. We see from the above figure that those two Terms
were also outliers in terms of the number of interruptions. This suggests that
even with just one relatively senior woman on the Court, the unusual lack of gender imbalance in those two
Terms was seemingly a result of more men being interrupted, rather than women
being interrupted less.
Technical note:
When we talk about interruptions in this post, we include
any time one speaker interrupts another speaker as indicated in the transcript
by the “–” notation at the end of the line. Previously, we have differentiated
between quickly occurring interruptions, which may be accidental (called
“crossovers” to capture two people beginning to speak at almost the same
time), and more distinct interruptions, occurring when a speaker clearly has
the floor, capturing more explicitly impolite or deliberate interruptions. We
do not yet have the timestamps for this Term to make this distinction.
Consequently, there may well be instances where the transcript reflects an
interruption which some of our readers may feel was not “really” an interruption.
That may be so, however, readers should also consider that perceptions of
whether one speaker has interrupted another are affected by the biases and
expectations of the listener and we trust the court reporters to at least be
consistent. We have used the same definition of interruption in all of the data
in this post.
In our October Term 2018 in review part I, we identified patterns of behavior among the justices. In this post, we look to the other side of the Bench, the advocates. As we have shown elsewhere, the proportion of female advocates appearing before the nation’s highest court has increased over time, but the Supreme Court Bar is still largely a “boys club.” Our analysis suggests there has been little improvement in representativeness at Supreme Court oral argument in the 2018 Term.
Me too? Where are the women?
In the 2018 Term, there were 124 individual advocates who appeared before the Supreme Court: 26 were female and 98 were male. Over the 71 oral arguments, these advocates collectively made 185 appearances: 32 by women and 153 by men.
One might imagine that women would get better opportunities through the Solicitor General’s office than in the private sector. And it is marginally better, at least this Term. In OT2018, of the 124 advocates, 20 appeared for the Solicitor General’s office in some capacity: Noel J. Francisco as the SG, Jeffrey B. Wall as the Principal Deputy SG, and 18 other deputy SGs and assistants to the SG. Five of these 20 government lawyers were women; however, those women accounted for only 9 of the 53 appearances. So, in sum, women account for 20.97% of Supreme Court advocates in OT2018, and 25% of advocates appearing for the SG’s office.
Repeat players: is it any better for female advocates next time around?
The figure below shows that the odds only get worse when we look at repeat performances. Of the 34 repeat players (those appearing twice or more) in 2018, only 6 were female. Four were from the SG’s office and two others also appeared twice or more: Ann O’Connell Adams, Rachel P. Kovner, Erica L. Ross, and Morgan L. Ratner, all assistants to the SG, Lisa S. Blatt, Chair of Williams & Connolly’s Supreme Court and Appellate practice, and Teresa Ficken Sachs, Co-Chair, Appellate Advocacy and Post-Trial Practice Group at Marshall Dennehey Warner Coleman & Goggin.
Let me talk: are women treated differently?
So much for appearances: once before the Supreme Court, were women also treated differently? We are interested in particular in whether the justices allowed male and female advocates the same chance to speak. The next figure shows the number of words each advocate spoke on average, per appearance this Term.
Looking at the average number of words spoken per appearance, there does not seem to be a clear gender pattern: 14 women were in the top half of the graph, 12 in the bottom half. That suggests that though their numbers may be low, women are getting to speak their turn without any greater interruption. That impression, however, is wrong.
To see why, think about the role of the Solicitor General: many believe the SG’s office receives greater deference from the justices, but looking only at the number of words may not show this. Given that the SG’s office regularly appears as an intervening amicus, the SG’s representative often talks for a shorter period than the non-government advocates.
To see if men and women, and government and non-government lawyers, are given the same chance to get a word in between the back-and-forth between the justices, the next figure shows the number of words spoken by each advocate as a ratio of the number of words spoken to him or her by the justices.
Now we see that the Solicitor General’s office did in fact tend to receive more deference in OT2018 than appeared in the raw numbers. In terms of gender, of the 24 women to appear in OT2018, only 7 were in top half in the ratio of words spoken, one was exactly in the middle and the remaining 18 wallowed in the bottom half of the table.
Once accounting for the fact that there are differences in the times of various advocates appearing for the Court, we see that not only are women grossly underrepresented in the Supreme Court Bar, but when they do get a chance to appear, they are not given as much chance to actually speak. Gender differences persist at the Supreme Court in the 2018 Term.
* Revised to correct advocate misidentification in earlier versions at Thursday May 9, 2019 7:39PM.
The Supreme Court has finished hearing oral arguments for the October Term 2018; analysis involving success rates will need to wait for all the vote outcomes to be revealed, but we can summarize much of the behavior at oral argument already.
As we have described in detail inThe New Oral Argument: Justices as Advocates, one of the defining features of modern Supreme Court oral arguments is how active the justices are. In The New Oral Argument, we argue that much of this activity is directed at judicial advocacy, and we found that “losers on the Court” tend to be more active, fighting back through their words. This includes justices who were in the minority when the case was decided. It also includes losers in a big picture sense: we found that when the Court has been dominated by conservatives, liberals have been more active—in contrast, in the 1950s and 1960s, when the liberals dominated, the conservatives were relatively more active. With the Court becoming even more conservative in the 2018 Term—with the retirement of the moderately conservative Justice Kennedy being replaced by now Justice Kavanaugh, anticipated to be considerably more conservative—we expected to see the liberals being more active than the conservatives. As the figure below shows, that is what occurred.
The figure above shows both words spoken and speech events
by each bloc of justices, for the average justice within each category. On
average, liberal justices each spoke approximately 37,000 words to the
conservatives’ approximately 26,000 words per justice. Liberals engaged in more
than 1,100 speech episodes on average, the conservatives only 950. Note that
for both these calculations, we treat the conservative bloc as consisting of
four speaking justices: Justice
Thomas speaks so infrequently that he is in a class of his own (the
“monastic conservative” bloc?).
Looking at the justices in more detail, the next figure
shows the differences for the 2018 Term.
True to form, Justice Breyer was the most verbose justice in
the Term, but he was not as far ahead of the other justices as he had
previously been. Justice Sotomayor was not far behind Breyer, and in fact spoke
more often. But as we know, Sotomayor is the most
interrupted justice on the Court, as she
was again last Term, so it makes sense that, as shown above, even though
Breyer talked more than Sotomayor, Sotomayor needed more speech episodes to say
less than Breyer.
For once, Thomas appears as a blip instead of a vacancy, due
to those 41 words—all spoken in one case, all directed to
one side (disagreement gap,
anyone?), all during the advocate’s rebuttal, and all challenging the side
making a Batson challenge in a criminal case. The facts of the case, Flowers v. Mississippi, were so outrageous that even the
ordinarily prosecution-friendly Justice Alito was shocked by the astonishing behavior of the local
prosecutor. Thomas’ intervention in Flowers
was not inspiring: his three questions were premised on a misunderstanding of
the law or the facts. We were also struck by the fact that the official court
transcript contains extra words Thomas did not say but which were
required/implied by traditional rules of grammar.
Focus on Kavanaugh
and Ginsburg
In light of all the controversy over his nomination and his remarkable
conduct during the nomination process itself, for which he subsequently
apologized, Justice Kavanaugh’s performance on the Bench is obviously
worthy of scrutiny. When Kavanaugh first
joined the Court, he seemed unconfident; after a few halting attempts to question
the advocates, he soon became more practiced. However, throughout the Term, we
noticed that Kavanaugh continued to cede the
floor more often than is typical for a male justice.
The other justice on everyone’s mind this year was Justice Ginsburg. Attention was drawn to Ginsburg due to her recent illness and ostensible frailty, but also because she was the star of an Oscar nominated biopic. The top three justices on both sides of the figure above are liberals, but Ginsburg was the exception, second bottom only to Thomas. Her activity cannot be assessed in raw totals due to her first absence from oral arguments due to illness. The next figure is also revealing on that question.
The figure above explores how Ginsburg’s and Kavanaugh’s performance at oral argument varied over the course of the Term. The figure shows the moving average in words spoken by our two key justices of interest, Ginsburg and Kavanaugh, as compared to the average for the other three liberals and other three conservatives (we have excluded Thomas who, despite breaking his silence, still barely registers). It shows the 71 cases of the Term, including Knick v. Township of Scott appearing twice, once for argument and once for re-argument. A moving average (here, of the last 7 cases) makes it easier to read any time trend that emerges, but it obscures the extremes—for instance, it will not show silence in a given case, but we can note that where it is interesting.
Ginsburg broke her ribs between cases 22 and 23, but her
activity levels were already dropping from case 11 onwards, and she was silent
in the two cases prior to breaking her ribs. We can only speculate as to
whether she was already feeling ill from the cancer that was discovered after
the break. She then missed 11 cases as she recovered from surgery. But the good
news is that she is back up to full RBG activity levels—in fact, in the last
dozen cases, Ginsburg has been more
active than she was prior to the rib break or the cancer diagnosis. We hope
this is a sign she is now in very good health. She is still not as active as
the other liberals, all of whom are younger than her, but she is up to the
level of the average conservative justice (who are also all younger than her).
Speaking of conservatives, our prediction that Kavanaugh
became more active over time is borne out in the figure. He began as the second
quietest justice on the Court until Ginsburg’s temporary decline; Kavanaugh is
now on average very similar to the other conservatives.
It is interesting to note
that, comparing the conservatives and the liberals overall over the course of
the Term, even though the conservatives were consistently less active than the
liberals, the two groups moved largely in lockstep (except for a bump in the
activity of the liberals during the 40s cases). This suggests that, with the
exception of that group of about 10 cases, while there are systematic
differences between the two groups, the justices as a whole agree on which
cases are more worthy of their input.
