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.

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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.

Advocate Interruptions and the Effect of Experience

Advocate interruptions in theory and reality

“Never interrupt a Justice who is addressing you . . . If you are speaking and a Justice interrupts you, cease talking immediately and listen.”

So mandates the Supreme Court’s guide to counsel appearing before the Supreme Court. And yet, in examining all transcripts of oral argument before the Court during the 20 years from Terms 1998 to 2017, there were 48,461 interruptions of the justices by the advocates.

We analyzed 1437 transcripts of oral argument and found that in any given case, on average each advocate interrupted a justice over 13 times.

Our method of analysis requires some unpacking. First, we should be clear about what we mean by an interruption. Oral argument is a conversation between the justices and advocates; Supreme Court guidance notwithstanding, some degree of interruption is a natural part of any conversation. Following the methodology used by Jacobi and Rozema in their study of the impact of justice-to-justice interruptions on case outcomes, we draw a distinction between true interruptions and mere crosstalk, i.e., the brief overlaps in dialog when two people go to speak at the same time and one instantly yields. Specifically our definition of an interruption excludes any speech event where either the interrupter or the interruptee spoke for less than one second. Using this threshold, Jacobi and Rozema found that “substantive” interruptions (unlike brief conversational overlaps) were a good predictor of eventual disagreement between the justice pair involved, even controlling for ideology.

Second, we should be clear on what we mean by an advocate in any given case. The 1437 cases we analyzed featured 1595 different advocates and 3690 advocate appearances. Even though the majority of advocates were single-shot players, i.e., they appeared only once in that 20 year period (1259 of 1595), the majority of appearances were made by advocates who appeared more than once (2431 of 3690). When we say “in any given case, on average each advocate interrupted a justice over 13 times” we looking at the average of 3690 advocate appearances without accounting for repeat players.

Differences between advocates

We are also interested in the extent to which the advocates get interrupted by the justices. Of course, being interrupted by the justices is part of the job at oral argument, but some advocates seem to receive greater deference than others, are allowed to speak for longer periods of time, and are peppered with fewer judicial interventions. Our analysis of the last 20 years of Supreme Court oral argument shows that in any given case, each advocate was interrupted by a justice over 15 times on average.

In a working paper, we are examining what determines advocate success; here, we look at whether advocate experience is associated not only with tolerance of breaking the non-interruption rule, but also with greater deference in terms of fewer interruptions by the justices.

We might expect that a single-shot lawyer who nurtures a case all the way from trial to their big day at the Supreme Court will behave differently to the Paul Clements and Michael Dreebens—experienced advocates who have argued dozens of cases before Court. To test the difference between experienced and inexperienced advocates, we calculated the number of times each advocate appeared in our 20 year period.

As we have argued previously, a good way to examine the nature of the interactions between the participants at oral argument is to compare the extent of an individual’s tendency to interrupt and be interrupted. The figure below displays those two patterns for each advocate appearance in our 1437 cases in the last 20 years. The dashed 45° line represents parity for an individual interrupting as often as they are interrupted, whether that was a little or a lot.

The figure is divided into four equal quadrants according to the appearing advocate’s total number of appearances in the 1998-2017 Terms, allowing us to see if the pattern of interruption varies with experience. The scatter plot shows all 3690 advocate appearances rather than reflecting the averages for our 1595 individual advocates. The advocates range in experience from 1 to 89 appearances, with a mean of 16.7 and a median of 5.

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Advocate Interruptions in Four Quadrants

What the figure shows is that the solid red circles consistently significantly outweigh the hollow black circles—that is, advocates are interrupted more than they interrupt the justices, regardless of experience. For all four quadrants of advocate experience, there is considerable clustering to the left, indicating that even advocates who barely interrupt are still interrupted quite frequently. Thus, politeness does not guarantee more of a chance to speak uninterrupted. But that is not surprising: justices are permitted to interrupt. If the advocates followed the rules and never interrupted, we would only observe points above and to the left of the line. Instead, we see significant interrupting behavior by the advocates at all levels of experience.

In terms of advocates receiving deference, the four quartiles all appear to have a similar distribution pattern; but by calculating the means for each quartile, we see that the rate of interruptions by the justices does go down in the third and fourth quartiles. In the first quartile, with an average of 1 appearance, advocates were interrupted on average 16 times and themselves interrupted an average of 14 times. The numbers for the second quartile, with an average of 2 appearances, were similar: 16.5 and 14, respectively. But in the third and fourth quartiles, with an average of 12 and 51 appearances, respectively, the number of interruptions dropped to 14.5 and 14, respectively, and the number of interruptions dropped to 12 and 12.5, respectively. The standard deviations are quite high, so we must be careful making generalizations, but this suggests that experience results in fewer interruptions, in both directions, by and of the justices.

Elite Advocates

Looking just at the most experienced advocates, we see there is considerable variation in behavior. The figure below shows the rate of being interrupted and interrupting for the most experienced advocates—those who have appeared before the Court at least 15 times in the last 20 years. The first figure is ordered by the number of appearances, noted in parentheses; the second figure is ordered by the average number of times the advocate interrupted, again, noted in parentheses.

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Elite Advocates Interruptions by Appearances

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Elite Advocates Interruptions by Interruptions Committed

Interruptions by the justices are coded red and interruptions by the advocates are coded blue. The lack of symmetry for each advocate confirms that the justices interrupt consistently more often than the advocates do, but the correlation between interrupting and being interrupted is clear: low interrupters such as Ann O’Connell are interrupted less, whereas common interrupters such as Edwin Kneedler are interrupted frequently. Which way the causation runs, and whether those patterns can be explained by factors such as case salience, are questions that require further research.

By Matthew Sag, with input from Tonja Jacobi