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Empirical evidence of Roberts’ switch in the ACA case

The metrics suggest Roberts was not the only one to switch

With a Supreme Court nominee declaring there has been a left-wing conspiracy against him, naturally people are wondering whether a Justice Kavanaugh, if confirmed, could eventually act in a more judicious fashion. If not, might the new median of Court, Chief Justice Roberts, rise to the challenge of putting the institutional interests of the Court above his own political preferences? Looking back at the Chief’s role in deciding the fate of the Affordable Care Act (aka Obamacare), we are optimistic that he can.

When the fate of the ACA was decided in NFIB v. Sebelius, many were surprised to see the conservative Chief side with the liberal justices to uphold the signature legislation of the Democrat President. Others anticipated it, expecting Roberts to subvert his political preferences to avoid a 5:4 conservative-liberal divide on such a salient case in the lead-up to the 2012 election. On reading the opinions, many were struck by the fact that Roberts’ majority opinion read in large part as a manifesto against the legislation he was unhappily upholding; in addition, the dissent at times referred to the majority as “the dissent.” This suggested that Roberts may have initially sided with the conservatives – a view furthered by rumors to that effect. Until now, this has all been speculation. Here, we assess the empirical evidence from oral argument as to whether Roberts switched, and find some interesting results: not only did Roberts switch, but he was not the only one who changed his vote on some of the issues.

The four separate parts to the Obamacare oral argument

There were four questions addressed in four separate oral arguments over three days: (1) whether the constitutional validity of the ACA should even be heard by the Court; (2) whether Congress has power to require Americans to purchase healthcare, via the individual mandate, either under the Commerce Clause or the Taxing and Spending Clause; (3) whether, if the individual mandate was unconstitutional, it was severable, or alternatively, if the rest of the ACA must fall as a result; (4) and whether Congress exceeded its powers under the Spending Clause by threatening to withhold Medicaid spending to non-cooperating states. The following figures show how the justices behaved at each of the four oral arguments in order, measured by the disagreement gap. As we explained in more detail in a previous post, the justices tend to have more to say to the side they ultimately vote against. This can be measured in terms of speech events or just the difference in the number of words. If the gap is very small, we treat it as a weak signal, colored gray; occasionally, the size of the disagreement gap on one measure will be large but other factors, such as the balance of statements versus questions, or the disagreement gap on another measure, indicates that the signal should be treated as weak.

ACA Issue 1 Disagreement Gap (Words) [Click on the image to expand]

ACA Issue 1 Disagreement Gap (Speech Events) [Click on the image to expand]
On the first issue, of whether the Court should address the substantive issues at all in light of the Anti-Injunction Act, the above figure shows that at least four of the justices strongly indicated a desire to decide the case on its merits, and the others did not give a clear signal. Only Justice Scalia seemed consistently against a decision on the merits, but only with a weak signal from a justice who seldom held his cards close to his chest. The first issue, then, looked cross-partisan, with Justices Sotomayor and Kagan wanting to hear the case, presumably to uphold the legislation, as clearly as Justice Alito, who presumably wanted to strike down the legislation. Roberts, too, made clear his desire to decide the case on the merits. Consistent with this, the Court ultimately unanimously held that the Anti-Injunction Act did not apply and that the case should be decided on the merits. This suggests that our metrics are working reasonably well.

ACA Issue 2 Disagreement Gap (Words) [Click on the image to expand]
ACA Issue 2 Disagreement Gap (Speech Events) [Click on the image to expand]
The second issue was the key question in the case and here our analysis in the figure above strongly suggests that Roberts did indeed switch his vote from striking down the legislation to upholding it under the Taxing Power. On both measures, the disagreement gap in words and speech episodes, Roberts consistently measures as the second most vehement against the ACA, behind Alito on one measure and Scalia on another. At oral argument, Roberts seemed to be the most consistently opposed to the ACA and yet he ultimately provided the swing vote in favor.

However, it is important to note that this oral argument addressed the government’s power to pass the ACA under both the Taxing Clause and the Commerce Clause. In authoring the majority opinion, although Roberts found the ACA constitutional under the Taxing Clause, he went out of his way to make clear that the Commerce Clause did not support the passage of the ACA. If Roberts had gone into the oral argument thinking that the ACA was valid as a tax but not under the Commerce Clause, we would have expected to see at least mixed signals from him during this section of oral argument rather than a signal strongly against the ACA. Furthermore, given that if the law was valid as a tax, its status under any other head of constitutional power should have been irrelevant, if Roberts held his tax position from the outset, he should have been less interested in the Commerce Clause issue.

ACA Issue 3 Disagreement Gap (Words) [Click on the image to expand]
ACA Issue 3 Disagreement Gap (Speech Events) [Click on the image to expand]
So it looks like Roberts switched his vote on the all-important second issue, but he was not alone in making a switch on an issue in this case. On the third issue, as seen in the above figure, Justices Kagan, Breyer, and Sotomayor all come out very strongly on both measures in favor of severability, pointing to a way that even if the mandate was struck down, the rest of the Act would stand. Yet, eventually all three of those justices joined the 5:4 majority that did not answer this question, even though the dissent addressed the issue in detail. This is not surprising: compromise is a standard part of the political and diplomatic process of building a coalition on a multi-judge court. What is noteworthy is that it shows that Roberts was not the only one who appeared to have switched – our empirical analysis of the oral argument suggest that other Justices were also acting strategically in NFIB v. Sebelius.

ACA Issue 4 Disagreement Gap (Words) [Click on the image to expand]
ACA Issue 4 Disagreement Gap (Speech Events) [Click on the image to expand]
Given Justice Thomas’ habitual silence, oral argument on the fourth issue indicated a very clear 4:4 liberal-conservative divide among the speaking justices would translate into a conservative 5:4 ruling. Such an ideological division would have fit with previous Spending Clause decisions (e.g. New York v. United States, 1992). Yet, the ultimate outcome was 7:2 against the ACA. At oral argument, Justices Kagan and Breyer led the pro-ACA charge when it came to the disagreement gap in speech events and both were close behind Sotomayor in terms of the disagreement gap in the number of words, and ahead of Justice Ginsburg. And yet Kagan and Breyer joined the opinion striking down this part of the ACA. The majority decision looks to be a product of politics: perhaps Kagan and Breyer were making a strategic concession – compromising on the Spending issue to ensure the constitutionality of the legislation under the Taxing power – or perhaps they were following the Chief’s lead and moderating their positions to preserve the institutional legitimacy of the Court.

* * *

Our empirical analysis of the oral argument in NFIB v. Sebelius indicates that four justices ultimately voted against at least one of their priors on display at oral argument. It is, of course, possible that our metrics are inaccurate, but they align with many commentators’ and experts’ expectations at the time. Possibly, these justices changed their fundamental views some time after oral argument, but another explanation is more likely. We see NFIB v. Sebelius as a case study in judicial strategy, the politics of compromise and coalition building, and how the justices occasionally sacrifice their individual policy preferences to protect the legitimacy of the Court.

By Tonja Jacobi and Matthew Sag

Notes: (1) Thanks to Barry Weingast for suggesting this inquiry. (2) For a more detailed account, see Tonja Jacobi, Obamacare As A Window on Judicial Strategy, 80 Tenn. L. Rev. 763 (2013) (ssrn link)

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Favoring friend versus foe in Supreme Court oral arguments

As we discussed in last week’s post on predicting Supreme Court votes based on oral argument metrics, on average the justices have much more to say during oral argument to the party they ultimately vote against. Last week we focused on the micro-picture and how this “disagreement gap” could be used to predict the outcomes of cases based on oral argument. It is also worth looking at the longterm trend, and what the disagreement gap tells us about the Court as an institution.

The Disagreement Gap Over Time

The Disagreement Gap Over Time (1955-2017 Terms) [CLICK IMAGE TO EXPAND]
The above figure shows the average number of words spoken by each justice per oral argument, differentiated on the basis of whether the justice ultimately voted for or against the position of the advocate. That is, whether the justice ultimately agreed or disagreed with the side that the advocate was arguing. The average number of words in agreement per case in any given year is indicated by the hollow black circles. Likewise, words in disagreement are represented by the solid red circles. The gray area shows the confidence interval for words in agreement and the light blue area does the same for words in disagreement.

We divided the data into two time periods: from the 1955 to 1994, and from 1995 to 2017. The shaded regions shows the 95% confidence interval for the trendline in each period. The division of the data between before and after the 1995 Term comports with the theory and findings in our forthcoming article, The New Oral Argument, that much of the increase in judicial activity during oral argument can be attributed to broader trends in political polarization, which escalated dramatically after the Republican Revolution in the 1994 Congressional election.

The figure above clearly shows that although a small disagreement gap has been a feature of Supreme Court oral argument for some time, the size of the gap drastically increased in the mid-1990s. Since the mid-1990s, the justices are now significantly favoring their “friends” over their “foes.”

The Disagreement Gap in the 2017 Term

The New Oral Argument examined 60 years of data, from 1955 to 2015. Now we are going to examine whether the disagreement gap applies evenly to all the justices. We focus on the recent 2017 Term, the first full term with Justice Gorsuch and without Justice Scalia.

The first two columns in the table below indicate the disagreement gap for each justice in the 2017 Term, in terms of words and speech events. The third and fourth columns show words and speech events in disagreement as a percentage of the total for each justice.

Justice

Average Disagreement Gap

Percent of Disagreement
(Words)
(Speech Events)
(Words)
(Speech Events)
Thomas 0 0 0 0
Kennedy 10 0.7 52% 54%
Breyer 151 2.0 59% 55%
Sotomayor 147 3.2 61% 56%
Ginsburg 79 1.6 63% 58%
Kagan 158 1.1 63% 53%
Roberts 126 1.3 64% 53%
Alito 162 3.7 69% 64%
Gorsuch 147 4.1 70% 64%

Every single justice who spoke in the 2017 Term follows the pattern that we identified, of speaking less to the side that he or she ultimately agreed with. Only Justice Thomas is truly evenhanded, by speaking not a word to either side.

Yet there is significant variation even among the eight speaking justices. If the justices were as easy to read at the poker table as they are in oral argument, then you would rather be on a table with Justices Gorsuch and Alito than with Justices Thomas and Kennedy. Gorsuch does not just follow the trend that we identified prior to his arrival on the Court: he personifies it. Justice Gorsuch shows the largest difference in number of speech episodes directed at each side; in the average case, he directed about 5.5 questions or comments to the side he voted with and 9.5 to the side he voted against. Another way to look at this is that Gorsuch and Kennedy each spoke an average of slightly over 100 words to the side they voted for, but whereas Kennedy spoke almost as many words to his foes, Gorsuch had more than twice as much to say to the side he voted against.

It is not surprising that Justice Gorsuch fits the disagreement gap pattern so well. We identified this effect as a product of partisan polarization, and Gorsuch was appointed in a climate of extreme political polarization in Congress, in an era in which the public is more polarized than ever.

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Predicting Supreme Court votes based on oral argument metrics

Applying forecast techniques to patent cases

Court watchers and interested parties pay close attention to the ebb and flow of oral argument in individual cases. Usually the best way to understand oral argument is to read the briefs and listen to the argument, but there is also mounting evidence that a more quantitative approach is useful in predicting the votes of individual justices and, ultimately, case outcomes. A big data approach allows for analysis that is not possible in a case by case analysis: for instance, it is not feasible to listen to every case in order to discern what historical trends are emerging in judicial behavior since 1955.

The disagreement gap

In our forthcoming article, The New Oral Argument: Justices As Advocates, we show that the justices overwhelmingly tend to have more to say to the party they ultimately vote against. Sarah Shullman made this suggestion in 2004 based on a study of cases from the 2002 Term; John Roberts came to the same conclusion in a 2005 article before he was appointed to the Bench; and Johnson, et al, among others revisited the issue in 2009.

In The New Oral Argument we show that this disagreement gap has been a feature of Supreme Court oral argument since at least the 1960s but that the size of the gap ballooned in the mid-1990s and has been increasing ever since. We also have a number of other metrics, taking into account more granular data including word counts, interruptions, and the difference between questions and comments, all of which we show follow patterns that help predict case outcomes.

Reduction to practice

Our disagreement gap analysis in the figures below shows the difference between the number of times each justice spoke to counsel for petitioner and counsel for respondent. Because being spoken to more often is actually a very bad sign for the advocate, we then invert those numbers so that a positive score reflects a gap favoring the petitioner (dark navy bars) and negative scores favor the respondent (red bars). Those bars reflect not only speech episodes to each side, but the ratio of questions to comments, patterns of interruptions, and other factors. We also indicate uncertainty or a “weak signal” from the data where appropriate (gray bars). The actual votes of the justices in these cases are indicated on the right-hand side of the figure.

In preparation for this year’s Supreme Court IP Review at the Chicago Kent Law School, Professor Ed Lee asked us whether there was anything interesting to report from the oral argument data for last term’s patent cases. We thought it was a great opportunity to test out some predictive models we have been working on, by applying our metrics to last Term’s intellectual property cases, and seeing if the outcomes could have been predicted based on their oral arguments.

WesternGeco LLC v. ION Geophysical Corp

Prediction based on oral argument in WesternGeco v. ION Geo [CLICK TO ENLARGE]
In WesternGeco v. ION the Court held 7-2 that lost profits in overseas markets attributable to patent-infringing exports are recoverable in patent litigation. Our model correctly predicted that Justices Gorsuch and Breyer would vote in favor of the respondent and that Justices Kennedy, Sotomayor, Alito and Kagan would vote in favor of the petitioner. The WesternGeco analysis highlights how useful the model can be in predicting outcomes that don’t fall along traditional liberal-conservative fault-lines, such as the Breyer-Gorsuch coalition.

SAS Institute Inc. v. Iancu

Prediction based on oral argument in SAS Institute Inc. v. Iancu [CLICK TO ENLARGE]
In SAS Institute v. Iancu, the Court held 5-4 that when the Patent Trial and Appeal Board institutes inter partes review of a party’s challenges to the validity of an issued patent, it must make a decision on all of the patent claims contested by that party. The majority arrived at this conclusion by holding that that the word “any” meant “every” in the relevant statute. In SAS Institute, our model correctly predicted the votes of all of the justices except for the habitually silent Justice Thomas. Given the liberal-conservative divide evident in the eight speaking justices, we would have predicted that Justice Thomas would vote with the conservative majority in favor of the petitioner.

Oil States Energy Services, LLC v. Greene’s Energy Group

Prediction based on oral argument in Oil States v. Greene’s Energy [CLICK TO ENLARGE]
In Oil States, the Court rejected a constitutional challenge to the system of inter partes review introduced in the 2011 patent reform legislation, the America Invents Act. Oil States is the most intriguing of the three cases because so much rested on the outcome of the case and because, as seen below, our predictive model misread Justice Breyer’s eventual vote. Earlier this year, we were engaged as paid consultants and asked to predict the outcome of Oil States.

After reading the briefs, listening to the argument, and crunching the numbers, we predicted a 7-2 vote in favor of the respondent, with Justice Breyer concurring. Happily, this proved to be the exact outcome. Understanding the issues in the case and the substance of Justice Breyer’s comments and questions, we were confident that our model was misleading in this particular instance. However, the model was extremely useful in helping us to read the intentions of Justices Alito and Kennedy.

Patterns are not rules, and so even a very accurate metric will not accurately predict every judicial vote in every case. Hence in Oil States, we adjusted the empirical prediction in accord with what we heard of Justice Breyer’s tone. But by analyzing trends and patterns, we are able to go beyond impressionistic accounts in predicting case outcomes. The proof will be in the pudding, so check in here for our forecasts, and check back to see how they line up with the ultimate case outcomes.

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Judge Kavanaugh and a perfectly polarized Supreme Court

The Kavanaugh nomination is controversial not just politically, but institutionally

This week witnessed one of the most contentious and partisan Supreme Court nomination hearings in living memory. There are many reasons why the fight over the nomination of Judge Kavanaugh to fill the vacancy on the Supreme Court has been particularly intense. Kavanagh played a controversial role as part of the legal team in the Starr investigation into President Clinton and then in the Bush administration’s use of torture; indeed, questions having been raised over whether he was honest about his role in that policy in previous confirmation hearings. Many of Judge Kavanagh’s views (or the views ascribed to him) are unpopular with the majority of Americans: his position on a woman’s right to choose, the role of money in politics, the role of the state in providing healthcare, and whether politicians should be allowed to effectively choose their voters by gerrymandering  district boundaries with impunity. Taken together, these positions make a predicted Justice Kavanaugh the second most conservative justice on the Court, closest to Justice Thomas, one of the most extreme justices since modern ideological scoring of the Court began. It is not entirely surprising, then, that according to one recent poll, Judge Kavanaugh is the most unpopular Supreme Court nominee since Robert Bork, who failed to win confirmation in 1987.

Beyond Judge Kavanaugh’s potential to shift doctrine and policy to the right, the Kavanagh nomination represents a watershed moment in the history of the Supreme Court as an institution. If Kavanagh is confirmed, the Court will be perfectly polarized along partisan lines: all four liberal justices will have been appointed by Democrat presidents, and all five conservative justices will have been appointed by Republican presidents. As Neal Devins and Lawrence Baum explored in their 2016 article, Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court, broader political polarization has turned the Supreme Court into a far more partisan institution. According to Devins and Baum, the 2010 Term heralded a new era of polarization when the liberal-voting Justice Stevens, appointed by Republican President Ford, was replaced by Justice Kagan. Yet even then, the Court was not yet perfectly polarized because on a few key issues, such as gay rights and capital punishment, Justice Kennedy sometimes voted in coalition with the more liberal justices and against the position of the Republican party. If Justice Kennedy is replaced by Judge Kavanaugh, we can expect close to perfect polarization on the Court. What effect will such polarization bring to the Court?

In our forthcoming article, The New Oral Argument: Justices as Advocates, we show that there has already been significant impact from partisan polarization and we suggest that the effect of perfect polarization will likely be considerable. The polarization on the Court follows from the massive political polarization in Congress, which greatly accelerated in the mid-1990s after the Republican Revolution in Congress and contributed to congressional dysfunction. Elite political polarization soon translated into polarization among the public, which created public animosity and division. The Supreme Court is far from immune: we show that political polarization was associated with an increase in the justices behaving as advocates during oral argument.

One manifestation of such advocacy is that the justices are far more active at oral arguments, taking up considerably more of the time previously reserved for the advocates to make their cases. The following figure shows how that increased dramatically around 1995, as the country became more polarized.

Click on the image to enlarge
Average number of words spoken by the justices per case (1970-2017 Terms)

The figure shows the average number of words spoken by the justices per case in each Term before and after 1995. The shaded region shows the 95% confidence interval for the trendline in each period. There was a slight upward trend before 1995, but a far more significant discontinuity in the mid-1990s is evident on the graph, indicating that there was a large jump in the mid-1990s, when the average number of words spoken went from around 2000 before 1995 to closer to 4000 after 1995. This finding is supported by more sophisticated multivariate regression analysis, controlling for other variables. We conducted the same analysis to assess changes in the amount of time the justices speak: of the standard 60 minute oral argument, since 1995 the justices are taking up an additional 13 minutes on average.

It would seem obvious to expect, given these findings, that the justices are asking more questions, since the Supreme Court website describes the purpose of oral arguments as providing an opportunity for the justices to ask questions of the advocates directly. Yet as the figure below shows, that is not the case.

Click on the image to enlarge
Average number of questions and non-questions by the justices (1960-2015 Terms)

In the figure, the solid navy circles represent the average number of questions asked by the justices per case each Term at oral argument. The solid red circles represent the number of comments made by the justices on average per case. As can clearly be seen, the number of questions remained largely constant from 1960 to 2015, despite the massive increase in the number of words spoken by the justices. In contrast, the number of comments by the justices vastly increased, rising from approximately 100 per case to over 150 per case by 1995, and has reached close to an average of 200 per case by 2015. Once again, the shaded 95% confidence intervals indicate a clear and significant upward shift in the mid-1990s.

In The New Oral Argument, we argue that the more justices behave like advocates (i.e., presenting conclusions rather than asking questions), the more they will be perceived to have prejudged the issues in the cases presented to them. This threatens to undermine the Court’s legitimacy and the public’s faith in the Rule of Law. No one can know with certainty what will happen if Kavanaugh joins the Court—it is possible that he may bring a different approach or tone to Supreme Court arguments that will change the increasingly divided culture. However, given that his appointment would begin an era of expected perfect polarization, that seems unlikely. Political scientists and public surveys have shown that polarization leads to acrimony and divisiveness, due to a lack of middle ground and consequent inability to form a common consensus. This is particularly true among educated elites, such as Supreme Court justices. It is unsurprising, then, that the push to install a candidate with views far outside the mainstream has been controversial. That controversy is unlikely to fade away if Judge Kavanaugh joins a highly divided Supreme Court.

By Tonja Jacobi & Matthew Sag

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Dissent and Oral Argument

Oral argument as a preview to dissents

For a case to reach the U.S. Supreme Court, it should present a difficult question of law. The Supreme Court is not the ultimate arbitrator of fact but rather the apex court with the responsibility of determining the most pressing questions of doctrine. Reflecting this, the justices give priority to cases that represent circuit splits in the lower courts. Accordingly, it is unsurprising that in about 60% of cases at least one justice dissents. But the distribution of dissenting votes is far from uniform. Who dissents the most at the Court?

Click Image to Expand
Dissent Rate for All Justices, 1955 – 2017 Terms

The figure above shows the justices ranked by their relative percent of dissenting votes. On the Roberts Court, Justice Ginsburg dissents the most often, followed closely by Justice Thomas. At the lowest end of the spectrum lies Justice Kennedy, followed by Chief Justice Roberts.

Overall rate of dissent rate is not same as the number of dissents. Ginsburg, for example, has a dissent rate of 19.55% for her 25 terms on the Court. During this time she decided 2092 cases, 1664 in the majority and 409 in dissent. Ginsburg’s dissent rate is slightly ahead of Thomas’ (18.96%), but with his two year head start, he actually has more total dissents (442). Neither Ginsburg nor Thomas are anywhere near Justice Stevens’ 1054 dissents at an average of 24.69%.

The big picture pattern that emerges is straightforward: Justice Ginsburg is the most extreme liberal on the current Court, Justice Thomas the most extreme conservative; Justice Kennedy was the Roberts Court median, and he is expected to be replaced in that role by the Chief. Looking to previous eras, the same pattern holds: Justice Douglas was the most extreme justice on the Court since Martin and Quinn started measuring judicial ideology, followed by Justice Marshall (although Justice Harlan was somewhat more moderate). And not only were the other lowest dissenters, Justices Goldberg and Powell, also Court medians, but along with Justice Kennedy, all three were “super medians”— justices who dominated the center of the Court.

This is not a coincidence: the dominant measure of judicial ideology, the Martin-Quinn scores, hinge on dissenting as a sign of extremism. Essentially, the scores are based on the idea that the more often a justice dissents alone, the more extreme he or she is likely to be; the more often a justice votes with other justices, the less extreme he or she is likely to be. Moderates tend to find common ground with others, extremists do not. Consequently, looking at dissent rates over time reveals interesting insights into the changing dynamics of the Court.

Click Image to Expand
Dissent Rates Over Time During the Roberts Court (2005-2017 Terms) (Term-by-term on the left, Linear fit to show long term trend on the right)

The above figures both show the dissenting rates for each justice over time—the figure on the left shows the full variation for each, the figure on the right shows the trend for each justice over time. It is clear that while Justice Ginsburg has the highest rate of dissenting on the Roberts Court, that has not been true for the last five years. Both she and Justice Breyer have dissented less in recent years, while at the same time Justices Scalia, Thomas, and Alito have increased their rates of dissent. This conclusion adds to the significance of the reputedly more consistently conservative Judge Kavanagh potentially replacing Justice Kennedy: we can expect a resurgence in dissents from the justice so often celebrated for her dissents, Justice Ginsburg.

The reason is clear: Justice Kennedy sided more with the liberal justices in recent years than previously. This occurred frequently enough that in the 2014, 2015, and 2016 Terms— although not in his final term— Justice Kennedy measured as negative, i.e. slightly liberal in historical terms, whereas previously he had always registered as moderately conservative. The zero threshold is somewhat artificial but Kennedy’s relative liberal decision-making in his final years is reinforced by the increasing dissent rate of Justices Scalia, Thomas, and Alito. The lack of a similar pattern by the Chief supports the view that this is a product more of the changing agenda of the Court than any actual change in preferences by Kennedy prior to his retirement—it seems that the Court was taking more cases where moderate conservatives have more in common with liberals than with extreme conservatives.

The limit of ideological measures is that they are based on judicial votes in cases by Term—thus they are both retrospective, knowable only after the justices have determined case outcomes, and are also generalized trends. But we know that the justices sometimes vote contrary to their ideology, so to predict case outcomes, ideally we would have ex ante case-specific information, rather than ex post Term-level information. And this is where oral arguments come in.

The justices’ dissenting behavior follows a pattern discernible not only from long-term trends, but also from individual case behavior: how much they speak at oral argument. The following table shows the trend for the Roberts Court; the same pattern has been shown to apply for previous courts.

Words Spoken in Majority and Dissent on the Roberts Court
Justice Words in Majority (average) Words in Dissent (average) Dissent-Majority Difference Dissent-Average Difference
Gorsuch 313 514 201 66
Thomas 57 203 146 87
Souter 581 715 133 104
Alito 323 441 117 86
Scalia 592 677 84 72
Kennedy 320 384 63 64
Kagan 553 607 54 35
Breyer 823 874 51 34
Stevens 282 329 46 30
Roberts 542 580 38 38
Ginsburg 430 455 25 27
Sotomayor 536 546 9 -11

The above table shows the average number of words used by each justice per case at oral argument when the justice is ultimately in the majority once the case is determined, and when ultimately in dissent. The difference for every justice is positive: justices consistently speak more when they will ultimately dissent in the case. When normalized for the amount of words each justice speaks on average per case, the difference is positive for every justice except for Justice Sotomayor. As such, with one exception, if you want to know whether a justice is likely to dissent in a case, you need only listen carefully to how much they talk at oral argument and compare it to how often they ordinarily talk. The most talkative justices will, on average, be those who ultimately dissent. This comports with the more general trend we have shown that the “losers of history”—be it in the case at hand or in terms of long-term dominance of the Court—tend to be more active at oral argument than those on a winning streak.

In this way, as in others previously explored, oral arguments can constitute a preview of case outcomes, including which justices will dissent. This is particularly helpful when we have less information from other sources. As we have previously cautioned, analysis of Justice Gorsuch’s behavior has to be particularly careful because of his short service on the Court. The first figure suggested that Justice Gorsuch may be less conservative than expected, sitting as he does in his initial rate of dissent between Chief Justice Roberts and Justice Alito. But his high level of difference in activity level when dissenting versus when in the majority puts him in a far more extremist company, with strongly conservative Justices Thomas, Alito, and Scalia, as well as Justice Souter, who, despite being appointed by a Republican, was almost as liberal as Justice Ginsburg.

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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?”

Click on Image to enlarge
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

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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

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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

 

 

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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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Justice-to-justice interruptions: gender versus ideology?

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.

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Justice-to-justice Interruptions 1998-2016 Terms

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.

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Justice-to-justice Interruptions 2017 Term

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