Politeness and Formality in Supreme Court Oral Arguments

Politeness takes various forms at SCOTUS oral arguments

Supreme Court oral arguments are a formal, structured affair, where power differentials are clearly demarcated and the advocates are explicitly instructed to defer to the justices. One product of this hierarchy is norms of civility, but the exact content of these norms can be hard to parse. Justices talking down to the advocates is frowned upon, as the freshman Justice Gorsuch discovered when he was seen to be condescending to the Supreme Court bar. In contrast, Justice Scalia was often celebrated for his jibes and “biting wit” even when at an advocate’s expense. And among the justices, Justice Gorsuch is said to have irritated his colleagues by being patronizing, yet Scalia once awarded his colleagues a “Prize for the Court’s Most Feeble Effort to fabricate” an argument. This raises the question of what constitutes politeness at the Supreme Court: is it a question of form over substance?

A more sorry state of affairs

Previous scholarly work, updated in a previous post, showed that female justices use polite language significantly more often than male justices; it also provided evidence of polite language forming part of the institutional role of being chief justice, at least for Chief Justice Rehnquist, who dramatically increased his use of polite language when promoted from Associate Justice. This post first looks at other trends over time on the Court in terms of polite language.

The figure below measures politeness over time by the Court as a whole, broken down by the justices’ tendency to use terms that psychology and linguistic scholarship has shown to be both polite and a common part of the female register, phrases such as “I’m sorry,” “excuse me,” and seeking permission to speak, using the preliminary phrases “may I ask” and “can I ask.” Other examples not examined here include questioning one’s own statement, such as saying “the bus is yellow, isn’t it?”

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The Elements of Politeness Over Time

We assess use of each term as a proportion of how many times the justice spoke. Thus, the above figure shows politeness conditional on speaking. We have shown that the justices are far more active at oral argument, taking up approximately 13 minutes more of the usual 60 minute argument time. The above figure shows that, even controlling for that increasing level of speaking, and despite the increased polarization of the Court, judicial politeness at oral argument has increased since 2005. That shift is entirely driven by the justices increasingly saying “I’m sorry.” It is not politeness in general that has increased of the Court, just a sense of the need to apologize.

The dominance of formality over politeness

The next figure looks at a different measure of politeness, use of an attorney’s name. As we have argued, saying “Mr. Phillips,” “Ms. O’Connell,” or “General Verilli” serves the same purpose as much of the polite language described above: by helping the justice ask a question at oral argument without launching straight into the substance of the question—what we call “throat clearing.” But this pattern is a type of formality rather than traditional politeness, and we see quite different trends emerge in the two types of language.

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Name-check Over Time, Justice Kagan’s Contribution Highlighted

This figure uses the same technique as the first figure, but looks at the justices’ changing tendencies over time to address the advocates by name. The first thing to notice is the difference in scale between the first and second figures. Even in the Court’s most polite Term, 2017, the rate of polite language per speech episode was well below .04; use of the advocates’ names was commonly more than double that, even exceeding .08 in the early 1990s. From 1995 to 2010, there was a considerable drop off in this pattern of language, but even at the new low point in the late 2000’s, the level was equal to the Court’s typical use of polite language. As such, formality has largely dominated politeness at the Court.

The downward trend since 1995 fits with our findings of significant changes occurring at oral arguments since 1995: increasing activity by the justices, who use more words, have more speech episodes, and speak for longer duration; and increased advocacy by the justices, who offer more comments than questions and direct those comments particularly to the advocates each justice ultimately rules against. However, with the entry of Justice Kagan onto the Court in 2010, there has been a considerable renewal in the use of advocates’ names and titles. The navy bars show Justice Kagan’s contribution to this pattern: she accounts for almost half the Court’s use of this language since 2010, and the vast bulk of its renewed use. As the next figure shows, Justice Kagan is an outlier not only on the current Court in this regard, but also historically.

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Elements of Politeness By Justice (By Speech Episode)

The figure above shows the proportion of both polite and formal language by used each justice since 1955, as a fraction of each speech episode. While Justice Kagan is far ahead of all of the justices in aggregate, the vast majority of her throat clearing is made up of formalities; in contrast, Justice Stevens has the highest level of using traditionally polite language, primarily by utilizing the polite preliminary phrases “May I ask?” or “Can I ask?”

The above figure also shows that part of the large increase in the “sorriness” of the Court in recent years is driven by the entrance of two (or three) justices in particular on the Bench. Chief Justice Roberts, who joined the Court in 2005, Justice Sotomayor, who joined the Court in 2009, and Justice Gorsuch, who joined the Court in 2016, use this language particularly frequently (but, as previously noted, conclusions about Justice Gorsuch are necessarily preliminary). In contrast, while there are some justices, such as Justice Breyer, who use advocates’ names very infrequently, many more of the justices regularly use this formality than use traditionally polite language.

This analysis answers some questions and raises others. For instance, are justices who were previously advocates more likely to use titles, having been trained to always address the justices by name during oral argument? And are the trends we have identified in the use of language over time, such as diminishing use of permission to ask and increase in the use of “I’m sorry,” particular to oral arguments or are these movements more general within society?

By Tonja Jacobi and Matthew Sag

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