Analysis and Review of U.S. Supreme Court Oral Argument
In the 2020 Term to date, the male to female appearance ratio is 73:13. Measured in time the disparity is 1307 hours to 201 hours; in words it is 224,000 to 32,000.
There are more appearances by men named Jeffrey, David and Jonathan (14) than there are for all women (13).
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.
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.)
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.
Note that some advocates do not appear in the third figure, as the transcript indicates that they did not interrupt at all during their appearance/s.
When we talk about interruptions in this post, we include any time one speaker interrupts another speaker as indicated in the transcript by the “–” notation at the end of the line. Previously, we have differentiated between quickly occurring interruptions, which may be accidental (called “crossovers” to capture two people beginning to speak at almost the same time), and more distinct interruptions, occurring when a speaker clearly has the floor, capturing more explicitly impolite or deliberate interruptions. We do not yet have the timestamps for this Term to make this distinction. Consequently, there may well be instances where the transcript reflects an interruption which some of our readers may feel was not “really” an interruption. That may be so, however, readers should also consider that perceptions of whether one speaker has interrupted another are affected by the biases and expectations of the listener and we trust the court reporters to at least be consistent. We have used the same definition of interruption in all of the data in this post.
As we have now well documented, there has long been a gender imbalance in the rate of interruptions of female justices versus male justices. Previously, we asked whether that imbalance had improved in response to the attention being given to the Virginia Law Review article that revealed this pattern, as both Justice Sotomayor and Justice Ginsburg had each suggested it had. As of OT2017, we found that it had not. But an analysis of justice to justice interruptions from the 2018 Term suggests there has been improvement at the Court.
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?
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.
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.
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.
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.
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.
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.
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
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
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.
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.
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
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.
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.
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.
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
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