Tonja Jacobi & Matthew Sag

October 1, 2020October 11, 2020

ScotusOA in the Supreme Court’s 2020 Term:

New concepts for the telephonic era

In a recent study on the Supreme Court’s switch to hearing arguments by telephone, we* showed that the new format gave the Chief the power to alter the liberal-conservative balance of argument, as well as to perpetuate the ongoing problem of female justices being interrupted disproportionately.

In determining how best to measure judicial activity at oral argument in the new forum, we wanted to be able to assess how much opportunity each justice has to speak, not just how many words or for how long they spoke. This is important because different justices use their time at oral argument differently.

For instance, if one justice asks three quick questions and gets three quick answers from an advocate, and another justice makes one long speech and gets one short answer from an advocate, how do we compare these two interactions? It is possible that both interactions may take the same amount of time, in which case the justice making the long speech will measure as more active in traditional measures of judicial activity—having had more words and longer duration in their individual activity levels. But, arguably, that interaction is not as substantive as the justice who speaks fewer words but who has multiple interactions with the advocate.

To better measure judicial activity at oral argument, especially in an era of highly structured time—with the justices speaking in order of seniority—and where that the length of that time is at the whim of the Chief Justice, we came up with a new tool for understanding judicial activity at oral argument.

We coded oral argument transcripts using a precise definition of an “interchange” between a justice-advocate pair. By interchange, we mean all of the time taken or words spoken between a specific justice and a specific advocate, by either of them, until a new justice-advocate interchange begins.

By switching to looking at the justice-advocate interchanges, rather than activity measured just from the point of view of the justice, we are able to capture how much of an opportunity for dialogue—and thus how much opportunity to influence the oral argument—each justice has. The many uses of this concept are illustrated below.

ScotusOA will be changing format

Each week, once the audio is released by the Court, we will post some graphical analysis of individual cases and also some analysis of the term to date.

We can divide each justice’s interchange with each advocate into the amount of time that the justice spends talking versus the amount of time that the justice spends listening to the advocate answers. We have excluded the time the Chief Justice spends in “traffic management”—i.e., calling on a new justice, switching between justices. We have also excluded the advocates’ quiet zone time under the Two Minute Rule and any uninterrupted rebuttal time the advocates are accorded.

We can illustrate our new approach with a case from last Term, McGirt v. Oklahoma, on the question of whether a state can prosecute an enrolled member of the Creek Tribe for crimes committed within the historical Creek boundaries:

There were four advocates in McGirt because the Muscogee (Creek) Nation, as amicus curiae supporting the petitioner, and the United States, as amicus curiae supporting the respondent, were represented separately from the petitioner and the respondent. Each justice is listed on the left in order of the total duration of their interchanges with each advocate. The time each justice spends speaking is shown in orange, and the time the justice allows the advocate to answer is shown in blue.

Take Justice Sotomayor as an example. She had the longest interchanges with both Riyaz A. Kanji, representing amicus curiae supporting petitioner Muscogee (Creek) Nation, as well as with Edwin S. Kneedler, representing the United States as amicus curiae supporting respondent. But Justice Sotomayor used her time very differently for each: in the interchange with Kanji, with whom she ultimately sided, she mostly listened, whereas in the interchange with Kneedler, supporting the opposite position, she spent more time talking than listening. This is consistent with what we have found previously in regard to the disagreement gap: justices talk more during the time of the advocate they ultimately rule against.

The next figure provides similar information but in a form that is very helpful in predicting case outcomes. Using McGirt again, it shows the number of words each justice speaks to each side of the case. In McGirt, with two advocates on each side, each graph in the figure represents the total time each justice spends talking to the advocates on each side.

The figure suggests that the outcome in McGirt should not have come as a surprise: Justice Gorsuch provided the fifth vote along with the liberal justices in favor of petitioner, as was predictable given that he spent the most time talking during the time of the two advocates supporting respondent, and spoke at a much lower rate during the time of the two advocates supporting petitioner.

The figure shows the conservative justices in electric green, and the liberal justices in light blue. The division of the justices into these blocs is important, particularly in light of our finding that, in the new telephonic forum, the Chief Justice is giving advantage to the conservative justices.

Looking at trends that emerge over the Term

We can also use the concept of interchanges to measure not only how each justice fares compared to every other justice in a given case, but also what happens over time. As the Term progresses, we will report the average amount of time each justice takes (or is allowed by the Chief) in all of their individual interchanges with the advocates. If a justice passes, their average will be unaffected. If a justice has two separate conversations with an advocate, then those time periods will be added together and will be reflected in their average.

That concept is illustrated in the next figure, which shows not only the mean duration of justice-advocate interchanges across both sides of the argument, but across cases. We use combined data from Trump v. Mazars and Trump v. Vance as an illustration. These are two related cases that the Court heard argument on by telephone, each of which addressed attempts to subpoena President Trump’s financial records—the former by Congress to subpoena a third party, and the latter by the New York state Attorney General. Once again, we divide by ideology.

Even looking at just these two cases, we can see how active Justice Alito is in the telephonic cases—as we showed in our recent study, Justice Alito received the most time of any justice in the telephonic cases, whereas he normally sits around the middle of the Court in terms of relative level of activity.

It is important to look at both individual cases and activity in aggregate, as variation in activity levels can also be telling. For instance, Justice Alito was permitted 16 minutes to engage in a dialogue with the advocate he disagreed with in Little Sisters, whereas Justice Sotomayor was interrupted by the Chief Justice after only about one quarter of the same time with the advocate—in that case, both Justice Alito and Chief Justice Roberts sided with the Trump administration that they could promulgate rules exempting employers with religious or moral objections from providing contraceptive coverage to their employees. Justice Sotomayor did not agree.

As such, looking at when justices are unusually active is also informative. In the rest of the telephonic cases, as in the in-person cases, Justice Kavanaugh was ordinarily around the middle in terms of his relative activity levels. But in the two Trump cases, which concerned the man who had recently nominated him to the Court and defended him in the face of a credible but unproven accusation of attempted rape, Kavanaugh was unusually active. In the end, Kavanaugh was in the majority in both of the Trump tax returns cases, siding with the President, and he wrote a separate concurring opinion in Trump v. Vance—we have shown elsewhere that justices are more active in cases in which they write ultimately opinions.

Keeping a constant eye on gender relations at the Court

As mentioned, our most recent analysis shows that the gendered differences in the treatment of female versus male justices at Supreme Court oral argument continues. At the end of the 2018 term, our analysis showed there had been some improvement in terms of interruptions—although the problem was still apparent.

But female justices are not the only ones subject to gendered treatment. Female advocates are still underrepresented at the Supreme Court, and when they are given a chance to stand before the justices, they get less speaking time.

With these disparities in mind, we will track the average number of words each female advocate speaks to the Supreme Court, as the 2020 Term progresses. The numbers for the 2019 Term are illustrated in the next figure—if a female advocate appears more than once, her average words per argument are shown (the number of appearances appear in parentheses after each person’s name).

To illustrate just how underrepresented women are at the Court, we compare how each female advocate is treated compared to the average for the three men with the most common names appearing in the term to date.

The figure shows that in 2019, men with just three names—Jeffrey, Paul, and Eric (in green)—appear more times in the term than the entire cadre of women appearing before the Supreme Court that year (in blue). In 2019, Jeffreys, Pauls, and Erics appeared 26 times; all of the women put together appear 20 times. We will update this graph for every case heard, to see if there is improvement.

To see how the combination of female underrepresentation and muting of female voices really adds up over the course of the term, the next figure shows the numbers in aggregate of how many words are spoken by male and female advocates appearing in the 2019 term.

We have provided citation suggestions for each figure, but readers should feel free to contact us if they want more information, such as specific numbers represented in any graph.

By Tonja Jacobi and Matthew Sag

* Oral Argument in the Time of COVID: The Chief Plays Calvinball is an article by Tonja Jacobi, Timothy Johnson, Eve Ringsmuth & Matthew Sag.

November 12, 2019

The Term so far . . .

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.

November 1, 2019

Look who’s talking less

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.

October 21, 2019June 10, 2020

Textualism as pretext in the LGBTQ discrimination cases

“We are all textualists now, [when it suits us]”

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.

This is a horizontal bar chart of predictions of the oral argument based on the ScotusOA model. The Y axis is ordered by strength of prediction of a vote for Petitioner. The X axis is centered on a 50/50 prediction. Numbers to the left of the midline range from 50 to 100 percent in favor of Respondent. Numbers to the right of the midline range from 50 to 100 percent in favor of Petitioner. The chart shows predicted votes in favor of Petitioner in blue with bars extending from the midline to the right and votes in favor of Respondent in orange with bars extending from the midline to the left. Details of this prediction are described in the text. — ScotusOA prediction based on the oral argument in Bostock v. Clayton County (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 as described in the text. — 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 what tool 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.

October 14, 2019October 15, 2019

How to predict doctrinally complex and morally murky death penalty decisions?

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. Described in the text. — 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.

June 14, 2019June 14, 2019

Is Justice Kavanaugh an Originalist?

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.

Bar chart showing number of times Kavanaugh voted with each other justice. Details described in the text. — *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.

Bar chart showing number of times Kavanaugh cross-referenced each other justice. Details described in the text. — *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).

Pie chart. Details described in text. — *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.

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.

June 5, 2019June 4, 2019

The New Median: Ideology in the Post-Kennedy Court

Guest post by Maveric Searle

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

One simple way to identify the median justice is to look at who has voted in the majority most often this Term. The median justice should have a high rate of voting in the majority because historically the median is in the majority in closely decided cases more often than any other justice.

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.”

May 21, 2019May 20, 2019

October 2018 Term in review — Part IV (Interruptions, continued)

Gender versus seniority

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.

May 14, 2019May 14, 2019

October 2018 Term in review — Part III (Interruptions)

A more civil Term?

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:

May 7, 2019May 14, 2019

October 2018 Term in review — Part II (Advocates)

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.