Author: Tonja Jacobi

Professor of Law at Northwestern Pritzker Law School
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Interruptions among the justices as a predictor of voting disagreement

In a just published article in the Boston College Law Review, Kyle Rozema and I show that interruptions between two justices at oral argument are significantly associated with voting disagreement between pair in the eventual case outcome. We show that on average, a given judicial pair is 7% less likely to vote together in a case where an interruption occurs between them at oral argument. This adds to the mounting evidence that interruptions constitute good predictors of voting outcomes in cases.

Not all justices are alike, but the pattern is clear

Kyle and I show that interruptions at oral argument, as in the many other areas where interruptions have been studied, capture a form of conflict between the justices. Whether interruptions cause ill will or reflect existing conflict, either way they provide a glimpse into otherwise hidden forms of disagreement between members of the Court. Of course, scholars have long recognized regular dividing lines among the justices, most notably ideological divisions, but those factors apply across all cases—we are able to show that interruptions in a given argument reflect an increased probability of disagreement in the case at hand, even accounting for more general ideological division.

The correlation between interruption and disagreement is not the same for all justices. In general a justice is more likely to disagree with someone who has interrupted them or whom they interrupted, but there is variation. The figure below shows the extent to which each justice is more likely to vote contrary to someone with whom they were involved in interruption in a given case. Points to the left of the zero line in the center indicate a greater tendency to agree, points to the right of the zero line indicate a greater tendency to disagree. All but four justices serving on the Court between 1960 and 2015 lie to the right of the zero line, being more likely to disagree with someone with whom they interrupt or are interrupted by.

Differences in Disagreement for Cases with and without Interruptions (Jacobi & Rozema 2018)

Interruptions as conflict, and other theories

We show that a substantially and significantly significant relationship exists between justice to justice interruptions and ultimate disagreement between those justices in the case at hand: a greater probability of voting disagreement between justices of 7% based on one interruption is a very large effect. The question, then, is what is the mechanism of that disagreement?

We explore several explanations for why justices who interrupt each other in a case are less likely to vote together. Our hypothesis is a “conflict” theory: interruptions constitute a type of observable conflict that is systematically associated with disagreement. The conflict theory is consistent with psychology research, which defines interruptions as “deviations from the turn-taking rule that specifies that only one party should talk at the time.”

But we also explore other theories. A second “exposure” theory would suggest that justices who speak more in a case might be more exposed to interrupting or being interrupted simply by virtue of taking up more airtime. A third “dissatisfaction” theory is that a justice is interrupting because he or she is at odds with the rest of the Court about the direction of the oral argument and the anticipated outcome of the case. For example, this may occur if the case is very salient to the individual justice but not necessarily salient to the rest of the Court. A fourth “difficult case” theory would suggest that interruptions are simply reflections of something about the case generally that is common to all justices, and cases with more disagreement are more prone to interruptions. In difficult cases, an interruption may not be specific to either of the justices involved in the interruption but is simply a response to the nature of the case itself

We find that the conflict explanation accounts for over half of the effect: the probability of two justices agreeing when one has interrupted the other in a case is reduced by over 4%, even after we have accounted for the other explanations. Exposure is the next most significant factor: a 10% increase in the time a pair of justices spend speaking decreases the likelihood of their agreement by 5.3%. We find no evidence for the dissatisfaction theory. We also find evidence for the difficult case theory: agreement between the justice-pairs is 1.3% lower when there is this kind of interruption. The effect of exposure and difficult cases, however, is less than the effect of conflict.

 

 

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The Gender Effect, Writ Small

There are many ways in which women are excluded from the conversation. Women are interrupted more, given fewer opportunities to speak, and, of course, subjected to mansplaining. When women do get to speak, men tend not to listen—as the old joke goes: “That is an interesting point, Ms. Jones, perhaps one of the men here would like to make it.”

The social science literature suggests, however, that women’s exclusion decreases as their power increases. So when my article with Dylan Schweers, “Justice, Interrupted” showed that female Supreme Court justices are interrupted three times as often as the male justices at oral argument, it received considerable attention. So much so that two Supreme Court justices noted its impact: Justice Ginsburg said that the article had got her attention and predicted that it may well affect the behavior of the justices; Justice Sotomayor later confirmed that the study has changed the dynamics of the Court, inspiring some of the male justices to apologize and the Chief to act more as a referee.

It struck me as ironic then, if not entirely surprising, to read a recent blog post by a man, Adam Feldman, that virtually erased my contribution to this area and seemed to appropriate the impact of “Justice, Interrupted” to himself. My article was addressed directly by two Supreme Court justices, yet it apparently rated no more than a “see also” link at the end of list primarily consisting of Feldman’s own writings. For Feldman to claim that the justices were responding to “these works” borders on misattribution.

The same post also underrates the contribution of another woman, Stephanie Mencimer of Mother Jones. Mencimer was in fact the first person to note the gendered pattern of interruptions on the Court, or at least the first to do so in print. She made this observation on the basis of numbers provided in a blog post by Feldman, but Feldman had not recognized the pattern himself. Feldman subsequently claimed that “[t]hese imbalances were identified” by him, but nothing indicates that to be so, at least not until a woman had pointed it out to him. Only more than a year later did Feldman (working with gender politics expert Rebecca Gill) explore the issue in detail, in an unpublished working paper, written at about the same time as my article with Dylan Schweers was under review at the Virginia Law Review, where it was accepted for publication in March of 2017.

Women are encouraged to be less assertive than men—I have written about this well-established effect in the context of criminal procedure. We are certainly expected not to challenge a man who takes credit for our work. But if we can’t even stand up for ourselves in order to get fair recognition for our work on gender dynamics, then what hope is there?

By Tonja Jacobi

 

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Gendered interruptions at the Court

Gendered interruptions at the Court: Looking forward and backward

In early 2016, I published an empirical study with Dylan Schweers, “Justice, Interrupted” which showed that female Supreme Court justices are interrupted three times as often as the male justices, by both male justices and male advocates at oral argument. Justice Ginsburg said that the article had got her attention and that it may well affect the behavior of the justices; Justice Sotomayor later confirmed that the study has changed the dynamics of the Court, inspiring some of the male justices to apologize and the Chief to act more as a referee.

Justice Ginsburg and Justice Sotomayor’s comments suggest that we should see the gender bias in interruptions dropping off in the 2017 Term. A recent blog post has suggested that female justices were not interrupted any more than male justices last Term. Unfortunately, the numbers do not bear out that conclusion.

The 2017 Term was in fact the second most gender unbalanced in the last 20 years. The figure below shows the ratio of interruptions of female versus male justices: 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.

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JUSTICE-TO-JUSTICE INTERRUPTIONS 2017 TERM, GENDER RATIO (NORMALIZED)

In 2010, for the first time ever, one third of the Court was female. Focusing on justice to justice interruptions, in 8 of the 12 years before 2010, the female justices were interrupted less often than the average male justices. Since then, in every Term, the female justices have been disproportionately interrupted. In the 2016 Term, for the first time that ratio exceeded 2:1, approaching 2.5:1. In the 2017 Term, once again the ratio of female to male interruptions between the justices exceeded 2:1 once we normalized the data to account for the fact that women are only one third of the Court.

Could Justice Sotomayor’s impression of a changed Court—beyond the apologies and potential interpersonal changes occurring behind the scenes—be a product of fewer interruptions overall? Once again, the numbers suggest otherwise. As the figure below shows, the number of interruptions per Term has been more or less steadily increasing in the last 20 years, and certainly 2017 was no exception.

From the late 1990s and early 2000’s, there were an average of between 25 and 50 interruptions each Term; during the Roberts Court, that number has not dropped below 50 per Term—with one exception. In the 2016 Term, with an 8 person Court taking fewer politically charged cases, the justices were perhaps less engaged and thus less disruptive of one another. But now with a full contingent, the justices are interrupting each other more than ever, leaving the previously unattained 100 interruptions threshold well behind, surpassing 125 interruptions.

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JUSTICE-TO-JUSTICE INTERRUPTIONS 1998-2017 TERMS

Another positive effect that Justice Sotomayor suggested had occurred was that the Chief was changing the way that he refereed the Court, making more of an effort to intervene to ensure interrupted justices had a chance to ask their aborted questions. After Adam Liptak of the New York Times wrote an article on my study, he wrote to me noting a series of arguments in which the Chief had said, “Justice X had a question pending,” redirecting the advocate back to an interrupted female justice. It is still early days, but to begin to test whether Chief Justice Roberts’s behavior changed in response to “Justice, Interrupted,” the figure below examines instances in which Chief Justice Roberts acknowledged a Justice by name and referred to a question, excluding instances in which the Chief referred back to a completed question for purposes of probing the advocate further on the topic.

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CHIEF JUSTICE ROBERTS’ INTERVENTIONS 2005-2017 TERMS

It is clear that the Chief, who famously thinks of himself as a referee, has markedly increased his refereeing activities at the Court over time, but that appears to be much more a product of experience than in response to my study. The Chief Justice does more refereeing in the 2016 and 2017 Terms than earlier in his chief justiceship, but the trend appears to start well before the 2016 term. Not every effect can be captured by the data—if the study prompted the men of the Court to apologize to the women, then it had a very significant effect, but it is not one that is apparent to the public eye.

By Tonja Jacobi, with input from Matthew Sag