Author: Tonja Jacobi & Matthew Sag

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Who is the Politest Supreme Court Justice?

Politeness takes various forms at SCOTUS oral arguments

Previous work on Supreme Court oral arguments has shown that the female justices are interrupted approximately three times as often as the male justices (see Jacobi & Schweers Justice, Interrupted, updated in a recent post). The same article also showed that over time, the female justices became less polite. At the beginning of their careers, the female justices tend to use polite throat clearing terms such as “I’m sorry,” “excuse me,” “may I ask,” “can I ask,” and saying the advocate’s name. These terms are common to the “female register,” the more polite language typically used by women, but at the Court such politeness offers the opportunity for others to interrupt before the speaker can get to the substance of her question. Over the years, the female justices come down to the lower politeness level at which most of the male justices naturally enter the Court.

It turns out that whether female justices reduce their use of polite language over time depends on what one’s notion of politeness is.  This post takes a more granular look at the issue of politeness with the benefit of additional data.

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Two Measures of the Politeness of Female Justices

The figure above shows two measures of politeness. First, the blue bars show how often, each justice says “I’m sorry,” “excuse me,” “may I ask,” “can I ask,” or says the advocate’s name (e.g. “Mr. Smith”) as a proportion of how many times the justice spoke. This is the measure used by Jacobi & Schweers. The line of best fit (the dashed line) tracks the trend over time. This confirms the finding women are adapting their behavior, becoming less polite over time in response to the high level of interruptions of female justices.

The second measure, represented by the solid circles connected by the solid lines, also shows the use of polite language but it does not include name-checking the advocate (i.e., saying the advocate’s name when addressing him or her). The solid line shows that there is considerable variation among the female justices in their linguistic patterns. Whereas Justice Sotomayor was relatively low on the more inclusive measure of politeness, she is the most polite in terms of using all of the traditional female register terms, such as “excuse me” and “I’m sorry.”

Furthermore, the female justices do not appear to be reducing the use of this language: the only significant change over time is Justice Sotomayor actually increasing her use of this type of polite language. For the other three female justices, name-checking accounts for the vast majority of Jacobi & Schweers’ concept of politeness. The use of the advocates’ names serves a similar purpose as the other forms of polite language, allowing the speaker to make clear that he or she is interjecting without launching straight into the heart of comment or question; but while it may be polite and serve the same throat clearing function, there does appear to be a difference in the pattern of its use.

Mirror, mirror on the wall, who is the politest of them all?

The next figure shows our different measures of politeness for all justices serving from 1955 through 2017, ranked by their use of polite language. Note that we did not include name-checking by the Chief Justice when introducing the advocate at the beginning of his or her speaking time, since this is an institutional responsibility unique to the Chief. Note also that the estimate for Justice Gorsuch is quite preliminary because he has only served one full Term on the Court. Gorsuch ranks as relatively polite on these metrics, so perhaps his “excruciating[] folksy[ness]” during his confirmation hearing was not just an act. But we note that because it is based on just one year of data, the error term on this estimate is high and Gorsuch’s ranking could change quite significantly in future years.

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Ranking the Politeness of Supreme Court Justices Since 1955

Unsurprisingly, under either measure of politeness, two of the top three most polite speakers are women, who appear in red. Under our broader measure of politeness, on the left, all four women to have served on the Court appear in the top nine. Under the narrower measure of politeness—excluding name-checking the advocate—Justices Ginsburg and O’Connor are demoted from 3rd to 15th, and 5th to 18th, respectively in a field of 33 justices. Either way, with all four women in the top half, this reinforces Jacobi & Schweers’ impression that Justices O’Connor, Ginsburg, Sotomayor, and Kagan are more polite than the average male justice, but the results are more striking with the inclusion of name-checking.

Hail to the Chief?

The difference between the two measures of politeness is dramatically illustrated by Chief Justice Rehnquist. Rehnquist was either the second most polite of all the justices or the fourth least polite, depending on which measure we use. Does the institutional role of the chief justice encourage politeness? The next figure looks more closely at the chief justices, tracking their use of polite language over time.

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Chief Justices and Politeness Since 1955

Looking just at the totals that the orange bars show, the striking result is the change in Chief Justice Rehnquist’s behavior. When Rehnquist joined the Court in 1972, he was initially very polite but then he quickly settled into a more typical male level of politeness, centering around 0.1 per speech event. Then in 1986, upon being promoted to Chief Justice, he displayed a sudden increase in politeness (as shown by the discontinuity in the dashed line of best fit). At the time, some argued that Rehnquist became more moderate upon taking on his new role, and the historical data support that: his Martin Quinn ideological score went from an extremely conservative 4.18 as Associate Justice to a far more moderate 1.97 as Chief Justice—a massive move toward the center of the Court (about the distance between Justice Thomas and Chief Justice Roberts on the current Court). Our analysis of the oral argument data suggests that Rehnquist may have seen part of his institutional role as Chief to not only be more moderate in voting, but also to be more collegial at oral arguments.

By Tonja Jacobi & Matthew Sag

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Justice-to-justice interruptions: gender versus ideology?

The effect of gender versus ideology on Supreme Court interruptions

As discussed in a previous post, the Virgina Law Review article, “Justice, Interrupted” (Tonja Jacobi & Dylan Schweers), showed that female Supreme Court justices are interrupted three times as often as the male justices at oral argument. This conclusion was based on hand coded data from the 1990, 2002 and 2015 Terms and algorithmically coded data from the 2004 to 2015 Terms. Yesterday’s post extended that data to include the 2016 and 2017 Terms and the 1998 through 2003 Terms, spanning a twenty year period.

One question that gets asked a lot about the gendered nature of interruptions at oral argument is whether the effect is a result of “the fact” that women talk more than men. It is true that speaking more is associated with more interruptions at the Court. But the common trope that women in particular talk more has been disproved time and again: women account for approximately one quarter of speaking time in the average conversation.

We could, of course, simply normalize interruptions by words spoken, but there is an endogeneity issue there. Interruptions might stop people from speaking, or the interrupted justice might speak more to respond to an interruption. We come at the issue another way: if it were true that female justices were interrupted more because they talk more, then we should also expect them to be responsible for more interrupting as well. But that is not the case at the Supreme Court.

The figure below looks at justice-to-justice interruptions. It shows the average rate of being interrupted and interrupting for each justice serving during the Roberts Court, covering the 1998-2016 Terms, inclusively. The dashed 45° line represents parity for any given justice: Justice Thomas and Justice Alito both sit on this line, interrupting as often as they are interrupted. In Justice Thomas’s case, he sits at the zero point both axes: not speaking has its advantages. Justice Alito interrupts more and is interrupted more than Justice Thomas but is still below average on both and proportional.

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Justice-to-justice Interruptions 1998-2016 Terms

Notably, all three of the women currently serving on the Court sit above the 45° line. Justice Ginsburg is only marginally above the line, making her slightly more interrupted than interrupting. But Justice Kagan and Justice Sotomayor both sit well above the line, disproportionately more interrupted than interrupting. It is primarily the interruptions of those two justices, then, that are driving the ongoing gender tilt on the Roberts Court. In contrast, Justice O’Connor sat well below the line, making her much more an interrupter than an interruptee.

Is the gender effect that we see on the Court, then, idiosyncratic to the personalities of the justices? Not necessarily. As Jacobi and Schweers showed, ideology was also a strong predictor of interruptions: in the modern era, the conservative justices interrupt liberal justices disproportionately. As shown in a previous post, Justice O’Connor served on the Court during a period of much lower interruptions overall, and at a time that did not show the same gender pattern. Unfortunately, she has been the only conservative female justice throughout the Court’s history. Ideally, we would have a new conservative female justice to test out the extent to which ideology versus gender is driving the pattern, but with the nomination of Judge Brett Kavanagh to the Court, and a Republican controlled Senate, that knowledge remains out of our reach for the foreseeable future.

We can use the same style of figure, plotting the numbers of justice-to-justice interruptions for each justice, to see what if anything changed in the 2017 Term. As seen in the figure below, Justice Kagan, Justice Sotomayor, and Justice Breyer were still significantly more interrupted by their fellow justices than interrupting of their comrades in the 2017 Term. They are now joined in this status by Justice Alito, who moves off the even ratio line, lowering his rate of interrupting relative to his rate of being interrupted. Notably, Justice Ginsburg shifted significantly in the other direction in that same Term, putting her below the even ratio line.

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Justice-to-justice Interruptions 2017 Term

We would not put too much stock in year-to-year variation, but it is useful to take a snapshot of what is going on in oral argument, particularly seeing some variation in Justice Alito and Justice Ginsburg’s behavior. We can also for the first time plot the position of Justice Gorsuch, who is neutral and sits low on both axes, but that may just be the behavior of a new justice.

At first glance it may seem that both gender and ideology are playing less of a role than previously, with one less liberal woman be interrupted more than she interrupts, and one conservative man going in the other direction—but that is misleading. Note that the scale has dramatically increased in the 2017 Term: as we showed in a previous post, justice to justice interruptions are dramatically increasing in recent years. In the 2017 Term, Justice Sotomayor, Justice Kagan, and Justice Breyer were all interrupted so much more than they are interrupting that the gender differential is still considerable. Similarly, in the 2017 Term, conservative justices interrupt at three times the rate of liberal justices, even with Justice Ginsburg and Justice Alito doing their best to even the scales.

By Tonja Jacobi and Matthew Sag