October 2018 Term in review — Part IV (Interruptions, continued)

Gender versus seniority

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.

Interrupting versus being interrupted: who is disproportionate?

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.)

Advocate interruptions of justices: improvement?

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.

Technical notes:

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.

October 2018 Term in review — Part III (Interruptions)

A more civil Term?

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.

Female Justices are still disproportionately interrupted, but less so

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?

A recent improvement, or a broader trend?

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.

A more civil Court?

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.

Technical note:

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.

October 2018 Term in review — Part II (Advocates)

In our October Term 2018 in review part I, we identified patterns of behavior among the justices. In this post, we look to the other side of the Bench, the advocates. As we have shown elsewhere, the proportion of female advocates appearing before the nation’s highest court has increased over time, but the Supreme Court Bar is still largely a “boys club.” Our analysis suggests there has been little improvement in representativeness at Supreme Court oral argument in the 2018 Term.

Me too? Where are the women?

In the 2018 Term, there were 124 individual advocates who appeared before the Supreme Court: 26 were female and 98 were male. Over the 71 oral arguments, these advocates collectively made 185 appearances: 32 by women and 153 by men.

One might imagine that women would get better opportunities through the Solicitor General’s office than in the private sector. And it is marginally better, at least this Term. In OT2018, of the 124 advocates, 20 appeared for the Solicitor General’s office in some capacity: Noel J. Francisco as the SG, Jeffrey B. Wall as the Principal Deputy SG, and 18 other deputy SGs and assistants to the SG. Five of these 20 government lawyers were women; however, those women accounted for only 9 of the 53 appearances. So, in sum, women account for 20.97% of Supreme Court advocates in OT2018, and 25% of advocates appearing for the SG’s office.

Repeat players: is it any better for female advocates next time around?

The figure below shows that the odds only get worse when we look at repeat performances. Of the 34 repeat players (those appearing twice or more) in 2018, only 6 were female. Four were from the SG’s office and two others also appeared twice or more: Ann O’Connell Adams, Rachel P. Kovner, Erica L. Ross, and Morgan L. Ratner, all assistants to the SG, Lisa S. Blatt, Chair of Williams & Connolly’s Supreme Court and Appellate practice, and Teresa Ficken Sachs, Co-Chair, Appellate Advocacy and Post-Trial Practice Group at Marshall Dennehey Warner Coleman & Goggin.

Let me talk: are women treated differently?

So much for appearances: once before the Supreme Court, were women also treated differently? We are interested in particular in whether the justices allowed male and female advocates the same chance to speak. The next figure shows the number of words each advocate spoke on average, per appearance this Term.

Looking at the average number of words spoken per appearance, there does not seem to be a clear gender pattern: 14 women were in the top half of the graph, 12 in the bottom half. That suggests that though their numbers may be low, women are getting to speak their turn without any greater interruption. That impression, however, is wrong.

To see why, think about the role of the Solicitor General: many believe the SG’s office receives greater deference from the justices, but looking only at the number of words may not show this. Given that the SG’s office regularly appears as an intervening amicus, the SG’s representative often talks for a shorter period than the non-government advocates.

To see if men and women, and government and non-government lawyers, are given the same chance to get a word in between the back-and-forth between the justices, the next figure shows the number of words spoken by each advocate as a ratio of the number of words spoken to him or her by the justices.

Now we see that the Solicitor General’s office did in fact tend to receive more deference in OT2018 than appeared in the raw numbers. In terms of gender, of the 24 women to appear in OT2018, only 7 were in top half in the ratio of words spoken, one was exactly in the middle and the remaining 18 wallowed in the bottom half of the table.

Once accounting for the fact that there are differences in the times of various advocates appearing for the Court, we see that not only are women grossly underrepresented in the Supreme Court Bar, but when they do get a chance to appear, they are not given as much chance to actually speak. Gender differences persist at the Supreme Court in the 2018 Term.

* Revised to correct advocate misidentification in earlier versions at Thursday May 9, 2019 7:39PM.

October 2018 Term in review — Part I

The Supreme Court has finished hearing oral arguments for the October Term 2018; analysis involving success rates will need to wait for all the vote outcomes to be revealed, but we can summarize much of the behavior at oral argument already.

As we have described in detail inThe New Oral Argument: Justices as Advocates, one of the defining features of modern Supreme Court oral arguments is how active the justices are. In The New Oral Argument, we argue that much of this activity is directed at judicial advocacy, and we found that “losers on the Court” tend to be more active, fighting back through their words. This includes justices who were in the minority when the case was decided. It also includes losers in a big picture sense: we found that when the Court has been dominated by conservatives, liberals have been more active—in contrast, in the 1950s and 1960s, when the liberals dominated, the conservatives were relatively more active. With the Court becoming even more conservative in the 2018 Term—with the retirement of the moderately conservative Justice Kennedy being replaced by now Justice Kavanaugh, anticipated to be considerably more conservative—we expected to see the liberals being more active than the conservatives. As the figure below shows, that is what occurred.

The figure above shows both words spoken and speech events by each bloc of justices, for the average justice within each category. On average, liberal justices each spoke approximately 37,000 words to the conservatives’ approximately 26,000 words per justice. Liberals engaged in more than 1,100 speech episodes on average, the conservatives only 950. Note that for both these calculations, we treat the conservative bloc as consisting of four speaking justices: Justice Thomas speaks so infrequently that he is in a class of his own (the “monastic conservative” bloc?).

Looking at the justices in more detail, the next figure shows the differences for the 2018 Term.

True to form, Justice Breyer was the most verbose justice in the Term, but he was not as far ahead of the other justices as he had previously been. Justice Sotomayor was not far behind Breyer, and in fact spoke more often. But as we know, Sotomayor is the most interrupted justice on the Court, as she was again last Term, so it makes sense that, as shown above, even though Breyer talked more than Sotomayor, Sotomayor needed more speech episodes to say less than Breyer.

For once, Thomas appears as a blip instead of a vacancy, due to those 41 words—all spoken in one case, all directed to one side (disagreement gap, anyone?), all during the advocate’s rebuttal, and all challenging the side making a Batson challenge in a criminal case. The facts of the case, Flowers v. Mississippi, were so outrageous that even the ordinarily prosecution-friendly Justice Alito was shocked by the astonishing behavior of the local prosecutor. Thomas’ intervention in Flowers was not inspiring: his three questions were premised on a misunderstanding of the law or the facts. We were also struck by the fact that the official court transcript contains extra words Thomas did not say but which were required/implied by traditional rules of grammar.

Focus on Kavanaugh and Ginsburg

In light of all the controversy over his nomination and his remarkable conduct during the nomination process itself, for which he subsequently apologized, Justice Kavanaugh’s performance on the Bench is obviously worthy of scrutiny.  When Kavanaugh first joined the Court, he seemed unconfident; after a few halting attempts to question the advocates, he soon became more practiced. However, throughout the Term, we noticed that Kavanaugh continued to cede the floor more often than is typical for a male justice.  

The other justice on everyone’s mind this year was Justice Ginsburg. Attention was drawn to Ginsburg due to her recent illness and ostensible frailty, but also because she was the star of an Oscar nominated biopic. The top three justices on both sides of the figure above are liberals, but Ginsburg was the exception, second bottom only to Thomas. Her activity cannot be assessed in raw totals due to her first absence from oral arguments due to illness. The next figure is also revealing on that question.

The figure above explores how Ginsburg’s and Kavanaugh’s performance at oral argument varied over the course of the Term. The figure shows the moving average in words spoken by our two key justices of interest, Ginsburg and Kavanaugh, as compared to the average for the other three liberals and other three conservatives (we have excluded Thomas who, despite breaking his silence, still barely registers). It shows the 71 cases of the Term, including Knick v. Township of Scott appearing twice, once for argument and once for re-argument. A moving average (here, of the last 7 cases) makes it easier to read any time trend that emerges, but it obscures the extremes—for instance, it will not show silence in a given case, but we can note that where it is interesting.

Ginsburg broke her ribs between cases 22 and 23, but her activity levels were already dropping from case 11 onwards, and she was silent in the two cases prior to breaking her ribs. We can only speculate as to whether she was already feeling ill from the cancer that was discovered after the break. She then missed 11 cases as she recovered from surgery. But the good news is that she is back up to full RBG activity levels—in fact, in the last dozen cases, Ginsburg has been more active than she was prior to the rib break or the cancer diagnosis. We hope this is a sign she is now in very good health. She is still not as active as the other liberals, all of whom are younger than her, but she is up to the level of the average conservative justice (who are also all younger than her).

Speaking of conservatives, our prediction that Kavanaugh became more active over time is borne out in the figure. He began as the second quietest justice on the Court until Ginsburg’s temporary decline; Kavanaugh is now on average very similar to the other conservatives. It is interesting to note that, comparing the conservatives and the liberals overall over the course of the Term, even though the conservatives were consistently less active than the liberals, the two groups moved largely in lockstep (except for a bump in the activity of the liberals during the 40s cases). This suggests that, with the exception of that group of about 10 cases, while there are systematic differences between the two groups, the justices as a whole agree on which cases are more worthy of their input.

Dissensus on the Census

Checking every box

New York State’s challenge to the decision to include a citizenship question on the 2020 Census administered by the Department of Commerce checks every box for a Trump era Supreme Court case. Here we have states and public interest groups trying to hold the executive branch of the federal government to account for a decision that is technically within its power, yet self-evidently made in bad faith, and for which pretextual support is offered after the fact.

ScotusOA.com model prediction based on Supreme Court Oral Argument in Department of Commerce v. New York (April 23, 2019)
ScotusOA.com model prediction based on Supreme Court Oral Argument in Department of Commerce v. New York (April 23, 2019)

The Trump administration argues that asking about citizenship will make it easier to comply with the mandates of the Voting Rights Act, but the evidence available to the Secretary of Commerce when he made this decision was that a citizenship question would significantly depress response rates—primarily in households with undocumented or Hispanic residents. This in turn would make all the Census data less accurate (including the data on citizenship). The 2020 Census data will be used to draw redistricting maps, so Republicans have an obvious partisan interest in artificially depressing the apparent population in communities with high numbers of immigrants because these tend to vote Democrat. Oral argument last week in Department of Commerce v. New York reflected that partisan advantage to the conservative party.F

The argument divided quite predictably along ideological lines. Even though Justice Ginsburg shows as 60% likely to vote for petitioner, this is an artifact of her low numbers—she was the only justice (other than Thomas) to be remarkably uninvolved in the argument. She spoke 77 words to the three advocates on the Respondent side, challenging the inclusion of the question, and 112 words to the Solicitor General, representing the Petitioner. In essence, Ginsburg was not showing her hand.

Country before party?

In contrast, the rest of the speaking justices were uninhibited in showing their partisan colors. The conservative justices barely spoke a word in response to the Solicitor General’s cavalier attitude to potentially depressing responses to the census, then pounced on Respondent advocates—particularly Barbara Underwood, representing New York State—questioning every methodological aspect of the expert certainty regarding the effect inclusion of the question will have.

For their part, the three other liberal justices were actively involved, but all shied away from stating the real problem: the bad faith of government, and Secretary Wilbur Ross in particular. Only at the end of the government’s main period of argument did Justice Kagan come close to naming the misconduct at the heart of the issue, with echoes of the Nixon hearings underlining her words:

Elena Kagan: And if I may say — I’ll just finish here, General — I mean, a lot of your argument — your briefs are extremely well done.

Noel J. Francisco: Thank you.

Elena Kagan:  But a lot of your argument just do not appear in the Secretary’s decision memo. And — and the fact that SG lawyers can come up with 60 pages of explanation for a decision, that’s all post hoc rationalization. The question is, what did the Secretary say? Where did he say it? When did he say it? What does it mean, other than just ipse dixit and conclusions?

We have seen that the new conservative appointees nominated by President Trump have looked like siding with the liberals on a few issues, such as ineffective assistance of counsel, excessive fines, or ensuring broader access to Kavanaugh’s much loved beer. But when it comes to rigging elections to benefit the Republican Party, be it through gerrymandering or corrupting the Census all of the conservatives fall into partisan formation.

An accurate census is vital to many things, as mentioned, but it is also key to the Democratic system functioning properly. Similarly, political gerrymandering can prevent meaningful democratic involvement. Without the Supreme Court monitoring the self-interest of politicians in these core constitutional matters, everyone will suffer in the long run. The fact that Republicans may benefit in the short term should not blind these justices to the good of the country.

Prediction:

Petitioner (Department of Commerce): Alito, Gorsuch, Kavanaugh, Roberts, Thomas

Respondent (New York): Breyer, Ginsburg, Kagan, Sotomayor

Most likely to switch: no one will switch

Trademark, scandal, and dodging precedent in Iancu v. Brunetti

Last Monday, the Supreme Court heard argument in Iancu v. Brunetti over whether the Patent and Trademark Office (PTO) can refuse to grant trademarks to “immoral” or “scandalous” matters, as permitted under §2a of the Lanham Act. Last year, in Matal v. Tam, the Court ruled that the same section’s mandate to the PTO to deny trademarks to “disparaging” matters was unconstitutional, thus prohibiting the PTO from denying trademarks to brands based on, among other things, racial epithets.

The right to offend minorities versus the right to offend the majority

Tam was a difficult case: the facts at issue concerned an Asian band, “The Slants,” who embrace that traditionally derogative term in an ironic sense, so as to undermine the power of the offensive term. Importantly, the Court did not limit its ruling to minorities reclaiming derogatory terms; instead it held that genuinely racist, sexist, and other derogatory trademarks could not be barred by the PTO on those grounds. Having unanimously (though in split opinions) decided Tam, it seems to follow inexorably that “immoral” and “scandalous” marks must receive like treatment. Paradoxically, however, the Court last week seemed considerably less inclined to allow the PTO to prohibit swear words than to prohibit racial slurs.

In the oral argument in Iancu v. Brunetti, many of the justices went to great lengths to try to differentiate Tam, and their efforts were less than convincing. Chief Justice Roberts seemed to be more concerned with the idea of obscene trademarks than with the idea of trademarks for hate speech. Justice Breyer suggested that swear words could just be considered “fighting words,” and thus an exception to First Amendment protection—yet a white-owned company exploiting the term “Redskins” is not. Many of the justices seemed willing to contemplate allowing words that are incredibly offensive to minorities to become federal trademarks, but not words that might offend genteel folks, such as the justices themselves.

ScotusOA.com prediction based on Supreme Court Oral Argument in Iancu v. Brunetti (April 15, 2019)

How can you give a FCUK™ without getting FUCT™?

We think that Justices Sotomayor and Kagan are in fact in Respondent’s camp, despite the unclear signals they gave. They both see Tam as binding precedent in this case. They also seemed concerned, like Justice Gorsuch, that there was no “rational line” through the PTO’s inconsistent decision-making regarding words that are phonetically similar to “fuck,” whether in past tense or present tense.

The PTO defines vulgarity, a subcategory of scandalous terms, as “lacking in taste, indelicate, and morally crude.” These terms are, of course, inherently subjective and discretionary and by its own admission the PTO’s application of this test has been highly inconsistent. The PTO has allowed “FCUK,” “Fugly,” and “PHUKIT” to be trademarks, but denied, in the case at hand, a trademark for “FUCT.” But the government promises only to apply the seemingly broad terms of the statute far more narrowly in future, and argues this should help it avoid the finding of unconstitutional vagueness.

A case driven by confusion and prim euphemism

The core goal of trademark is to avoid consumer confusion. Ironically, the Iancu v. Brunetti oral argument was itself clouded with confusion about some very basic features of trademark law. One striking misunderstanding came from Justice Alito:

Justice Alito: “What’s going to — if this is held to be unconstitutional, what is going to happen with whatever list of really dirty words still exist and all of their variations? There’s going to be a mad scramble by people to register these marks. And the ones who get there first are going to have exclusive — they’re not unlimited. What’s going to — there’s going to be — those who get there first are going to be the ones who have these.”

We think the Justice might be confusing trademarks with the race to claim internet domain names. Registration of a mark in one classification does not preempt other non-confusing uses of the same word, either as a trademark or as a verb.

One thing that the Court did not seem confused about was the word at issue. Rather disappointingly for those among us who consider that swearing can be a linguistic art form, none of the advocates or the justices were willing to say the word “FUCT.” Instead, Mr. Stewart made sure the Court was clear on the term by using up his time by saying, more than once, this rather elaborate and wordy euphemism: the term that “would be perceived as the equivalent of the past participle form of the — the paradigmatic profane word in our culture.” Are the justices so sheltered and fragile that advocates must avoid even the conventional euphemism of “the f-word?” If so, this once again raises the problem of the unrepresentativeness of this elite group of jurists, particularly when deciding cases that hinge on the mores, perceptions, and likely inferences of the much more diverse U.S. population.

In similarly euphemistic terms, Mr. Stewart referred to a “particular racial slur [which] is considered uniquely offensive, even as compared to other racist speech” and argued that accordingly “it could be denied registration on the ground that it was an impermissible mode of expressing a racist — racist thought.” So the government wants not only to treat rude words as more offensive than racial slurs, it also wants to differentiate among the racial slurs that it considers beyond the pale, even after the Supreme Court has ruled that it does not have the power to make such determinations. We applaud the PTO’s act of civil disobedience here, but it is very hard to reconcile with the Court’s opinion in Tam. Similar acrobatics and logic will be needed to differentiate this case from Tam, but our analysis suggests that at least some justices on the Court are willing to limber up and do their best to take on that challenge.

It could be that the outcome will actually be unanimous for Respondent, if only because terms such as “scandalous” and “immoral” are clearly at least as unconstitutionally vague as “disparaging,” and would return the Court to regulating morality, a task it has struggled with in the past. As we have previously discussed, unanimous and lopsided decisions are hard to predict due to cheap talk at oral argument. Justice Breyer and the conservatives (other than Gorsuch) may have simply been clucking their displeasure at the vulgarity of the Respondent. They may in fact rule in his favor while clutching at their pearls. But the cavalier attitude of the Court during oral argument this Term toward other precedents makes us skeptical.

Prediction:

Petitioner (PTO): Breyer, Roberts, Alito, Kavanaugh, Thomas

Respondent (Brunetti): Ginsburg, Gorsuch, Kagan, Sotomayor

The Supreme Court is toasting marshmallows while democracy burns

Partisan Gerrymandering and the Passive Court

Last week, the Supreme Court considered (yet again) whether there should be any constitutional remedy for outrageous and blatant partisan gerrymanders—specifically the Republican gerrymander in North Carolina and the Democrat gerrymander in Maryland. The two cases, Rucho v. Common Cause and Lamone v. Benisek, were heard back to back over a total of 2 hours and 11 minutes.

The central question at oral argument in both cases was not whether partisan gerrymandering was good or bad—everyone knows it is bad—the question was whether there is anything the Court can and should do about it. Most people think this a bit like asking whether there is anything the fire department should do when an arsonist is pouring gasoline on a schoolhouse. But to be fair to the justices disinclined to act, there are some thorny conceptual questions to address before the Court can take action against the politicians and mapmakers currently setting fire to our democracy.

The ability of politicians to choose their voters, rather than vice versa, is dramatically increasing. In 2016, only 40 of the 435 seats in the House were competitive, compared to 100 in 2010, when gerrymandering was already a problem. After the 2010 census, the problem of partisan gerrymandering intensified dramatically due of a perfect storm of increased computer power, better statistical models, and more granular and more reliable data on individual voters. If the Supreme Court fails to act in Rucho and Lamone, the number of competitive seats could drop even lower and our votes will mean less and less.

Not only do partisan gerrymanders reduce accountability in individual districts, they often lead to counter-majoritarian results state-wide. In the last election, Wisconsin Democrats received 205,000 more votes than Republicans, but won only 36 of the 99 available seats in the gerrymandered State Assembly. In another gerrymandered race in 2018, Ohio Democrats got nearly 50% of the vote but only a quarter of congressional seats. North Carolina is a virtually evenly divided “purple” state. Yet in 2018, where Democratic candidates won every statewide election on the ballot, Republicans won the 10 of 13 districts—just as their map makers promised them.

In Rucho v. Common Cause, Paul Clement tried to persuade the Court that there was no room for the Court to assess even such an extreme disregard for representing the will of voters. But as Justice Sotomayor crisply explained in the very first question of the day: “Mr. Clement, that ship has sailed in Baker v. Carr.” If racial gerrymanders and the unequal weighting of votes (the issue in the 1962 case of Baker v. Carr) are justiciable, it makes no sense to say that partisan gerrymandering is inherently non-justiciable.

Currently, legislators craft maps that involve absurd line drawing in order for politicians to insulate themselves from public accountability, as can be seen in the map below of
Maryland’s 3rd Congressional district. Without the possibility of judicial review, there is no reason politicians will have to follow even the most basic intuitive criteria, such as contiguity. Non-justiciability amounts to a free-for-all.

Maryland US Congressional District 3 (since 2013)

Politicians around the country will use all the information in their voter files and all the tricks of big data to ensure that the will of the people is irrelevant to determining who represents them. As well as the 10:3 split in North Carolina, we should expect to see a 18:0 split in Illinois if the Court holds that partisan gerrymandering in non-justiciable—anyone who thinks Mike Madigan will care about traditional districting criteria (other than the mandatory one-person-one-vote requirement) if the courthouse door is closed to complaints about partisan gerrymandering is a fool.

Disproportionate angst over proportional representation

The hardest question in partisan gerrymandering is how one can definitively say whether a district map or a statewide map is fair or unfair without simply relying on the fact that it fails to deliver proportional representation. Of course, proportional representation sounds appealing, but individual House members represent distinct geographic areas and are elected on a “first past the post” basis—both factors are likely to produce non-proportional outcomes from time to time, even without deliberate partisan bias.

Although Paul Clement is a gifted advocate, we thought that Justice Alito actually expressed North Carolina’s argument most effectively:

Justice Alito: But, if you have 24,000 maps that satisfy all of the so-called neutral criteria that you put in your computer program, don’t you need a criterion or criteria for deciding which of the 24,000 maps you’re going to choose? And implicit in Justice Kagan’s comments is the idea, is it not, that you have to choose one that honors proportional representation?

To confirm our impression that proportional representation was the issue of the day, we broke the transcript in Rucho down into two word ngrams. Excluding the names of the justices, the most frequent 2grams (two-word ngrams) are illustrated below, with larger words being more frequent.

ScotusOA.com: Most frequent word pairings in Rucho v. Common Cause oral argument.

“Proportional representation” was mentioned 44 times in Rucho, whereas the next most common 2grams, “North Carolina” and “majority votes”, were mentioned only 14 and 11 times, respectively. Proportional representation was also the most common 2gram in Lamone v. Benisek, where it was only mentioned 12 times.

For all the angst over proportional representation, the quandary is overstated. The answer to the proportional representation question is surely that in a representative democracy with a constitutional guarantee of equal protection, we are all entitled to have our votes aggregated according to fair and reasonable criteria. A fair process will lead to something close to proportional representation in most cases, but not inevitably: respecting natural and political geography can lead to something different without violating the Constitution.

The Constitution does not guarantee proportional representation, but the Equal Protection Clause and First Amendment both require that district boundaries are drawn by a fair process, applying appropriate criteria. Partisan advantage, i.e., rigging the system in favor of your own team, cannot be one of those criteria.

Last call for democracy

Rucho v. Common Cause and Lamone v. Benisek are the last chance the Court has before the 2020 census to do something about partisan gerrymandering. So, with the future of democracy in the balance, how is the court likely to rule?

ScotusOA.com prediction based on Supreme Court Oral Argument in Rucho v. Common Cause (March 26, 2019)

Our predictive model for Rucho v. Common Cause is not encouraging. It shows a clear partisan split, with all of the Republican-appointed justices strongly leaning towards preserving the Republican gerrymander in North Carolina and all of the Democrat-appointed justices clearly against.

ScotusOA.com prediction based on Supreme Court Oral Argument in Lamone v. Benisek (March 26, 2019)

Our model’s predictions for Lamone v. Benisek are a bit confused by the fact that the justices seemed to be running out of steam at the end of the second hour of gerrymander-palooza. An optimist might conclude that the brazen Democratic Party gerrymander in Maryland will make Chief Justice Roberts see that the dangers of inaction for the Court outweigh risks of entering the dreaded “political thicket”, but we are doubtful. As for Justice Kavanaugh, based on some of his questions and comments, there is an outside chance that he will defy partisan expectations, but this is probably just wishful thinking.

Predictions for Rucho v. Common Cause and Lamone v. Benisek

Appellants: Alito, Gorsuch, Kavanaugh, Roberts, and Thomas

Appellees: Breyer, Ginsburg, Kagan, and Sotomayor

Most likely to switch: Kavanaugh and Roberts

Laughter and political polarization

“Against the assault of laughter, nothing can stand”

Justice Scalia is often celebrated for his humor, described as able to “crack up a room,” memorialized by President Obama as having “incisive wit,” and regularly labeled “the funniest justice” in a given Term. Yet, as Adam Liptak pointed out, what passes for humor at the Court “would probably not kill at the local comedy club.” This is true for all the justices, but especially Scalia, who regularly got laughs for scathing comments and sarcastic asides that are hard to credit as humorous. A few examples:

Justice Scalia:   Wow. Wow, that’s — I mean, that’s my comment. (LAUGHTER.)

Justice Scalia:   Oh, yeah, I’m sure that’s what they all had in mind. I had no doubt of that. [LAUGHTER]

Mr. Phillips:     … We’re going to leave the status quo ante, which means before the contracting officers declared that there was a default under these circumstances.

Justice Scalia:   It’s the “go away” principle of our jurisprudence, right? [LAUGHTER]

In our previous two posts, we showed that courtroom humor (i.e., the comments that inspire laughter) is a form of judicial advocacy, directed by the justices to those advocates they disfavor, and that humor is directed at the weak, with inexperienced advocates and those losing before the Court as a whole being the typical targets. In this post, we ask why that might be so.

Laughter is a blood sport in the culture wars

We surmise that humor at oral argument often takes this form because in the modern era the arguments have become a forum in the broader political war between highly ideologically polarized camps. Just as we showed that, starting in the mid-1990s, oral argument has mimicked changes in the political institutions toward extreme polarization, so too laughter, as a vehicle for judicial advocacy in the high-stakes fight for political dominance, follows that same tendency. Consequently, it is not surprising that the “blood sport” of humor at the Court often reflects the mean-spirited pursuit of domination that the Scalia examples above illustrate.

Our previous research suggests that the political polarization that began in the mid-1990s was reflected in the tendency of the justices to take on a greater advocacy and performative role during oral argument. Not only do the justices talk a lot more in the modern era, but they show a greater difference between how much they have to say to those the agree with (little) and those they disagree with (a lot). We call this the “disagreement gap.” In our new study we found that the same disagreement gap is also evident in the use of courtroom humor. We also found that the same differential exists for winners versus losers. The figures below illustrate the time-trend for both of these effects.

ScotusOA: Aggregate agree-disagree difference in justice inspired laughter at the Supreme Court, by term
ScotusOA: Aggregate win-lose difference in justice inspired laughter at the Supreme Court, by term

The first figure shows the disagreement gap in laughter over time. The bars below the zero line indicate more judicial laughter when the justice disagrees with the advocate (i.e., ultimately votes against). It is clear that starting in 1982, the gap was consistently below zero, except for the single 1985 Term—in every other year, the Court as a whole displayed this tendency. Since 1995, the beginning of the exceedingly polarized period of politics in the U.S., the effect has become considerably larger.

The second figure shows the results of the same analysis but looking at whether laughs occur during the time of the advocate who is losing more often than during the time of advocate to a winning— the former lies below the line for the Court overall, the latter above. Clearly, starting at the same time, 1982, but with a few more exceptions, and once again considerably increasing in scale after 1995, the Court tends overall to make jokes during the time of losing advocates, an effect that is both substantively and statistically significant after 1995.

The Court as a haven for vulnerable minorities?

Do the justices laugh more at losers because they are making fun of bad arguments? Perhaps, but it seems more likely that they are making fun of weak advocates for their weakness. This interpretation is supported by an additional slice of data: our study also shows that the justices make significantly more jokes at the expense of inexperienced advocates, and that this effect amplifies both the disagreement gap and the win-lose gap discussed above. The figure below shows the trend of judicial use of courtroom humor over time, by level of advocate experience.

ScotusOA: Three-year moving average of Justice inspired laughter at the Supreme Court. Novices are appearing for the first time; Very experienced advocates have 10 or more previous appearances.

As the solid blue region indicates, judicial laughter overall has massively increased in the modern era of the Court. The graph also shows that laughter at novice advocates, illustrated by the solid line, has always been higher than that for very experienced advocates, indicated by the dashed line; however, the disparity increased massively starting in the late 1980s, particularly after 1995, during the polarized political era. Given that inexperienced advocates are most likely to represent less powerful clients, such as prisoners, means that the justices’ jokes land most heavily on those representing the most vulnerable parties before the Court.

So we may laugh when the justices get laugh after laugh for variants of the popular “how would you like to lose” jest and other forms of humor based on superiority—Justice Scalia enjoyed the laughter in response to his “go away” joke above so much that he made it three times in the one argument. But we should know that we are really laughing at another manifestation of the political polarization that is dividing the nation.

When is a cross not just a cross?

Hint: Almost always, and definitely when it’s 40-feet-tall!

The Establishment Clause expressly prohibits the State from making any “law respecting an establishment of religion.” Yet, for decades, the Supreme Court has applied this particular limit on government power only selectively and half-heartedly. On the facts, it seems obvious that a 40-foot-tall stone and concrete cross set astride a traffic median by the State of Maryland is, first and foremost, a religious display by the State. It is equally obvious that the decision to honor WWI veterans with this particular symbol is either pretextual or secondary to the religious symbolism of the Latin cross. Granted, a cross can be seen simply as a marker for the dead (although many find it exclusionary, and offensively so, in that context) but when the cross is 40-friggin-feet-tall, its predominant meaning is unmistakable. 

Facts versus fictions

As clear as American Legion v. American Humanist Association might be on the facts, we suspect that in this particular area of constitutional law, facts matter a lot less than beliefs about the inherent legitimacy of Christian values and identity as universal American values and identity.

The universalist claim is wrong in every possible way. The founders did not hold to it even when the population was overwhelmingly Christian, and there are now more non-Christians in America today than there are people in Thailand, the United Kingdom, France, or South Korea. Nonetheless, the fiction that symbols like the Latin cross and the Ten Commandments are simultaneously Christian and yet universal is an article of faith among many conservative Christians, and this almost certainly includes the five conservative Christian men who constitute the majority of the Supreme Court.

Unpredictable jurisprudence, predicable jurists

The Establishment Clause jurisprudence on questions such as the mandatory prayer readings and the display of religious monuments is inconsistent and unpredictable, but the justices themselves are not.

Our predictive model, based solely on the oral argument, is almost exactly what you would expect. We see Justices Alito, Gorsuch, and Kavanaugh strongly in favor of the Petitioners (The American Legion and The Maryland-National Capital Park and Planning Commission), joined by Justice Breyer (consistent with his live-and-let-live concurrence in Van Orden v. Perry) and Chief Justice Roberts (who admittedly comes out as a toss-up on the numbers, but there seems little doubt where his sympathies were).

The female justices of the Supreme Court, Justices Ginsburg, Kagan, and Sotomayor, seemed far more skeptical of the universalist assumption. It is probably no coincidence that Ginsburg and Kagan are Jewish and that Sotomayor is (in her own words) a wise Latina.

Bar chart showing predictions for each supreme court justice. Justices are ordered from pro-Petitioner to Pro-Respondent. Pro-petitioner represented by blue bars to the right of the 50 percent midline in the top half of the figure. Pro-Respondent represented by orange bars to the right of the midline in the lower portion of the figure. The results are discussed in the text.
ScotusOA.com prediction based on Supreme Court Oral Argument in American Legion v. American Humanist Association (February 27, 2019)8

Prediction: 6:3 for Petitioners

For Petitioner: Alito, Gorsuch, Kavanaugh, Roberts, and Thomas. Breyer concurring.

For Respondent: Ginsburg, Kagan, and Sotomayor

Ginsburg is back: is she feistier than ever?

Liberal feminist icon, movie star, survivor. That is how we think of the diminutive 85 year old Supreme Court Justice Ruth Bader Ginsburg. On November 8th last year, Ginsburg was hospitalized after fracturing three ribs in a fall in her office at the Supreme Court. She still turned up for work at the next oral argument in Apple v Pepper on November 26th. But after a CT scan of her ribs revealed signs of lung cancer, the Justice was forced to take time away from the Bench to recuperate from surgery in late December. Justice Ginsburg returned to the Court last Tuesday after missing all of the Court’s January cases (although she kept up with the cases remotely). This was her third bout of cancer but her first absence from oral argument since arriving in 1993.

Ginsburg’s Return

The stage for Ginsburg’s return was an obscure but engaging question of statutory interpretation as to whether the government—the U.S. Postal Service in this case—is a “person” entitled to use the post-grant patent review procedures under the 2011 America Invents Act.

Ginsburg was the first justice to ask a question in Return Mail, Inc. v. United States Postal Service on Tuesday and she followed up four more times over the course of the hour. Ginsburg’s first question forced Petitioner’s advocate Beth Brinkmann to concede that her point about estoppel, which she described as the “linchpin” of her argument, was not actually an essential element of that argument.

Ginsburg’s second question began one of the main themes of the discussion that followed:

Ruth Bader Ginsburg:

But why — why would — why would the government — why — why would Congress want to leave a government agency out of this second look if the idea is to weed out patents that never should have been given in the first place?

Ginsburg Watch

For those who care more about whether President Trump will get a chance to complete the Federalist Society takeover of the Supreme Court than they do about the intersection of patent law and administrative law, the burning question on Tuesday was simply: how was Justice Ginsburg?

NRP’s Nina Totenberg reported that at the end of the argument, Ginsburg got up carefully, descended the steps behind the bench and walked out on her own. Listening to the argument on Oyez.org, we were struck that Ginsburg’s voice sounded stronger and clearer than it has for a long time. But with all the hype surrounding “Notorious RBG” these days, we thought we should try to answer the question empirically.

The figure below shows the number of words that Justice Ginsburg spoke at each argument over the course of the 2018 Term thus far. We split the data around Justice Ginsburg’s injury when she cracked her ribs: the arguments prior to November 8, 2018, are represented by the orange bars; those afterward are represented in light blue. The superimposed gray dots represent the average number of words spoken by the nine justices of the Court in each argument.

Figure showing the number of words spoken by Justice Ginsburg each argument over the course of the 2018 Term
ScotusOA.com: Justice Ginsburg’s Participation in Supreme Court oral argument, 2018 Term

As the figure shows, Ginsburg usually speaks less than the average justice and her level of participation varies. Although she seemed slightly subdued after her injury in November, she actually contributed more than the average justice in two post-November 8 cases, Nutraceutical Corp v Lambert on November 18 (722 words) and Gamble v United States on December 6 (567 words). For the rest of the Court, these cases were not unusually quiet.

Perhaps our subjective impression of Justice Ginsburg’s strong performance on Tuesday was a result of relief at having her back, or noting the strength of her voice, or wishful thinking, but it doesn’t really fit the objective data for the Term. Justice Ginsburg certainly made her presence felt in Return Mail, but she only spoke 123 words. To put that in context, she spoke more than this in 25 cases this Term and less in only 6 others excluding the January cases where she was absent. In fact, in 20 cases this Term, Ginsburg has had more to say to just one side of the argument (i.e., Petitioner alone or Respondent alone) than she said to both sides in Return Mail. Ginsburg is back, but only at 56% of her average for the Term.

We wish her well in her continuing recovery.