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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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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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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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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