ScotusOA in the Supreme Court’s 2020 Term:

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In a recent study on the Supreme Court’s switch to hearing arguments by telephone, we* showed that the new format gave the Chief the power to alter the liberal-conservative balance of argument, as well as to perpetuate the ongoing problem of female justices being interrupted disproportionately.

In determining how best to measure judicial activity at oral argument in the new forum, we wanted to be able to assess how much opportunity each justice has to speak, not just how many words or for how long they spoke. This is important because different justices use their time at oral argument differently.

For instance, if one justice asks three quick questions and gets three quick answers from an advocate, and another justice makes one long speech and gets one short answer from an advocate, how do we compare these two interactions? It is possible that both interactions may take the same amount of time, in which case the justice making the long speech will measure as more active in traditional measures of judicial activity—having had more words and longer duration in their individual activity levels. But, arguably, that interaction is not as substantive as the justice who speaks fewer words but who has multiple interactions with the advocate.

To better measure judicial activity at oral argument, especially in an era of highly structured time—with the justices speaking in order of seniority—and where that the length of that time is at the whim of the Chief Justice, we came up with a new tool for understanding judicial activity at oral argument.

We coded oral argument transcripts using a precise definition of an “interchange” between a justice-advocate pair. By interchange, we mean all of the time taken or words spoken between a specific justice and a specific advocate, by either of them, until a new justice-advocate interchange begins.

By switching to looking at the justice-advocate interchanges, rather than activity measured just from the point of view of the justice, we are able to capture how much of an opportunity for dialogue—and thus how much opportunity to influence the oral argument—each justice has. The many uses of this concept are illustrated below.

ScotusOA will be changing format

Each week, once the audio is released by the Court, we will post some graphical analysis of individual cases and also some analysis of the term to date.

We can divide each justice’s interchange with each advocate into the amount of time that the justice spends talking versus the amount of time that the justice spends listening to the advocate answers. We have excluded the time the Chief Justice spends in “traffic management”—i.e., calling on a new justice, switching between justices. We have also excluded the advocates’ quiet zone time under the Two Minute Rule and any uninterrupted rebuttal time the advocates are accorded. 

We can illustrate our new approach with a case from last Term, McGirt v. Oklahoma, on the question of whether a state can prosecute an enrolled member of the Creek Tribe for crimes committed within the historical Creek boundaries:

There were four advocates in McGirt because the Muscogee (Creek) Nation, as amicus curiae supporting the petitioner, and the United States, as amicus curiae supporting the respondent, were represented separately from the petitioner and the respondent. Each justice is listed on the left in order of the total duration of their interchanges with each advocate. The time each justice spends speaking is shown in orange, and the time the justice allows the advocate to answer is shown in blue.

Take Justice Sotomayor as an example. She had the longest interchanges with both Riyaz A. Kanji, representing amicus curiae supporting petitioner Muscogee (Creek) Nation, as well as with Edwin S. Kneedler, representing  the United States as amicus curiae supporting respondent. But Justice Sotomayor used her time very differently for each: in the interchange with Kanji, with whom she ultimately sided, she mostly listened, whereas in the interchange with Kneedler, supporting the opposite position, she spent more time talking than listening. This is consistent with what we have found previously in regard to the disagreement gap: justices talk more during the time of the advocate they ultimately rule against.

The next figure provides similar information but in a form that is very helpful in predicting case outcomes. Using McGirt again, it shows the number of words each justice speaks to each side of the case. In McGirt, with two advocates on each side, each graph in the figure represents the total time  each justice spends talking to the advocates on each side.

The figure suggests that the outcome in McGirt should not have come as a surprise: Justice Gorsuch provided the fifth vote along with the liberal justices in favor of petitioner, as was predictable given that he spent the most time talking during the time of the two advocates supporting respondent, and spoke at a much lower rate during the time of the two advocates supporting petitioner.

The figure shows the conservative justices in electric green, and the liberal justices in light blue. The division of the justices into these blocs is important, particularly in light of our finding that, in the new telephonic forum, the Chief Justice is giving advantage to the conservative justices.

Looking at trends that emerge over the Term

We can also use the concept of interchanges to measure not only how each justice fares compared to every other justice in a given case, but also what happens over time. As the Term progresses, we will report the average amount of time each justice takes (or is allowed by the Chief) in all of their individual interchanges with the advocates. If a justice passes, their average will be unaffected. If a justice has two separate conversations with an advocate, then those time periods will be added together and will be reflected in their average.

That concept is illustrated in the next figure, which shows not only the mean duration of justice-advocate interchanges across both sides of the argument, but across cases. We use combined data from Trump v. Mazars and Trump v. Vance as an illustration. These are two related cases that the Court heard argument on by telephone, each of which addressed attempts to subpoena President Trump’s financial records—the former by Congress to subpoena a third party, and the latter by the New York state Attorney General. Once again, we divide by ideology.

Even looking at just these two cases, we can see how active Justice Alito is in the telephonic cases—as we showed in our recent study, Justice Alito received the most time of any justice in the telephonic cases, whereas he normally sits around the middle of the Court in terms of relative level of activity.

It is important to look at both individual cases and activity in aggregate, as variation in activity levels can also be telling. For instance, Justice Alito was permitted 16 minutes to engage in a dialogue with the advocate he disagreed with in Little Sisters, whereas Justice Sotomayor was interrupted by the Chief Justice after only about one quarter of the same time with the advocate—in that case, both Justice Alito and Chief Justice Roberts sided with the Trump administration that they could promulgate rules exempting employers with religious or moral objections from providing contraceptive coverage to their employees. Justice Sotomayor did not agree.

As such, looking at when justices are unusually active is also informative. In the rest of the telephonic cases, as in the in-person cases, Justice Kavanaugh was ordinarily around the middle in terms of his relative activity levels. But in the two Trump cases, which concerned the man who had recently nominated him to the Court and defended him in the face of a credible but unproven accusation of attempted rape, Kavanaugh was unusually active. In the end, Kavanaugh was in the majority in both of the Trump tax returns cases, siding with the President, and he wrote a separate concurring opinion in Trump v. Vance—we have shown elsewhere that justices are more active in cases in which they write ultimately opinions.

Keeping a constant eye on gender relations at the Court

As mentioned, our most recent analysis shows that the gendered differences in the treatment of female versus male justices at Supreme Court oral argument continues. At the end of the 2018 term, our analysis showed there had been some improvement in terms of interruptions—although the problem was still apparent.

But female justices are not the only ones subject to gendered treatment. Female advocates are still underrepresented at the Supreme Court, and when they are given a chance to stand before the justices, they get less speaking time.

With these disparities in mind, we will track the average number of words each female advocate speaks to the Supreme Court, as the 2020 Term progresses. The numbers for the 2019 Term are illustrated in the next figure—if a female advocate appears more than once, her average words per argument are shown (the number of appearances appear in parentheses after each person’s name).

To illustrate just how underrepresented women are at the Court, we compare how each female advocate is treated compared to the average for the three men with the most common names appearing in the term to date.

The figure shows that in 2019, men with just three names—Jeffrey, Paul, and Eric (in green)—appear more times in the term than the entire cadre of women appearing before the Supreme Court that year (in blue). In 2019, Jeffreys, Pauls, and Erics appeared 26 times; all of the women put together appear 20 times. We will update this graph for every case heard, to see if there is improvement.

To see how the combination of female underrepresentation and muting of female voices really adds up over the course of the term, the next figure shows the numbers in aggregate of how many words are spoken by male and female advocates appearing in the 2019 term.

We have provided citation suggestions for each figure, but readers should feel free to contact us if they want more information, such as specific numbers represented in any graph.

By Tonja Jacobi and Matthew Sag

* Oral Argument in the Time of COVID: The Chief Plays Calvinball is an article by Tonja Jacobi, Timothy Johnson, Eve Ringsmuth & Matthew Sag.

Textualism as pretext in the LGBTQ discrimination cases

  “We are all textualists now, [when it suits us]”

When a case is really close, really close, on the textual evidence, and I — assume for the moment I’m with you on the textual evidence. It’s close, okay? We’re not talking about extra-textual stuff. We’re — we’re talking about the text. It’s close. The judge finds it very close. At the end of the day, should he or she take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that — that Congress didn’t think about it — and that — that is more effective — more appropriate a legislative rather than a judicial function? That’s it. It’s a question of judicial modesty.

~ Justice Gorsuch in Harris Funeral Homes v. Equal Employment Opportunity Commission
(with interruptions removed for readability)

Last week, in Bostock v. Clayton County and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, the Court addressed whether discrimination on the basis of sexual orientation and gender identity, respectively, is discrimination on the basis of sex, and thus contrary to Title VII. There has been much commentary on these cases; we are now able to take a look at the numbers, both to predict the outcomes of the cases based on the disagreement gap, and to empirically examine the content of some of the arguments.

This is a horizontal bar chart of predictions of the oral argument based on the ScotusOA model. The Y axis is ordered by strength of prediction of a vote for Petitioner. The X axis is centered on a 50/50 prediction. Numbers to the left of the midline range from 50 to 100 percent in favor of Respondent. Numbers to the right of the midline range from 50 to 100 percent in favor of Petitioner. The chart shows predicted votes in favor of Petitioner in blue with bars extending from the midline to the right and votes in favor of Respondent in orange with bars extending from the midline to the left. Details of this prediction are described in the text.
ScotusOA prediction based on the oral argument in Bostock v. Clayton County (October 8, 2019)
This is a horizontal bar chart of predictions of the oral argument based on the ScotusOA model. The Y axis is ordered by strength of prediction of a vote for Petitioner. The X axis is centered on a 50/50 prediction. Numbers to the left of the midline range from 50 to 100 percent in favor of Respondent. Numbers to the right of the midline range from 50 to 100 percent in favor of Petitioner. The chart shows predicted votes in favor of Petitioner in blue with bars extending from the midline to the right and votes in favor of Respondent in orange with bars extending from the midline to the left. Details of this prediction are described in the text.
ScotusOA prediction based on the oral argument in RG & GR Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (October 8, 2019)

Our predictive model for Bostock shows Justice Alito clearly on the side of the respondent and Justice Ginsburg equally clearly on the side of the petitioner. The model is surprisingly equivocal about Roberts, Breyer, and Kavanaugh, and it suggests that Sotomayor, Kagan, and Gorsuch are leaning in favor of complainant petitioner. According to our model of Harris Funeral Homes, the justices lined up slightly differently in the transgender case. It shows Roberts and Gorsuch strongly in favor of petitioner (i.e. favoring a narrow reading of title VII) and Breyer, Kagan, and Ginsburg strongly favoring respondent. The model we use to predict votes based on oral argument is not particularly well suited to combined arguments, and this combined argument was especially confused. For example, the justices had multiple questions about bathrooms and gender identity for Pam Karlan in the first argument about the gay skydiver that would have made a lot more sense directed to David Cole in the second case about the transgender funeral home employee.

Others have suggested that Justice Gorsuch could be the potential swing vote in these cases. The reason for this is that, as a professed textualist, he could be expected to vote on the side of the Title VII plaintiffs, for whom the textual argument appears clear: if a woman who is married to or attracted to a man is treated differently to a man who is married to or attracted to a man, that would is clearly a difference based on sex. Similarly, if a woman who chooses to dress or identify as a man is treated differently to a man who chooses to dress or identify as a man, that is also a difference based on sex. Of course, as a conservative, Gorsuch’s ideological preferences pull him in the other direction. As such, these two cases are good tests of just how much of a textualist Gorsuch really is, or alternatively, how much of an ideologue. Our empirical analysis of the argument in Bostock v. Clayton County is encouraging for the plaintiff, but not in Harris Funeral Homes

Of course, if Gorsuch votes to deny gay and transgender individuals the protection that Title VII’s plain text evidently affords them, he will not admit that he is not being a textualist. Rather, as the initial quote suggests, Gorsuch is claiming that the cases are very close, and that it is permissible to stray from textualism under such conditions. The word cloud pictured below is based on what Gorsuch had to say in Harris Funeral Homes v. EEOC. It illustrates Gorsuch’s emphasis on the “close question” and signals that he is likely to vote for a narrow atextual reading of Title VII.

Word cloud as described in the text.
Word cloud based on Justice Gorsuch’s contributions to oral argument in RG & GR Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (October 8, 2019)

Text or pretext?

There are two massive problems with Gorsuch’s position: first his claim that the textualist case is a close one is implausible, and second, he is not asking the appropriate question.

First, the textualist argument on the other side is not simply weak; rather, it defies ordinary doctrinal logic. The argument goes that discrimination on the basis of sexual orientation or gender identity is not discrimination on the basis of sex because the question is: Is it lawful to treat a gay man differently to a gay woman, or a trans man differently to a trans woman? However, this phrasing of the question only works if you presuppose the answer to the question asked of the Court: whether using sexual orientation or gender identity as a basis for distinguishing is lawful under the statute. To phrase the question in terms of whether you are differentiating between different gay people in the right way presupposes that it is okay to treat gay women different to straight women, and gay men different to straight men. The textualist argument is not close; it is not even close to being close.

But the more damning problem is that a justice is not a textualist if he or she follows textualism only for the easy cases, and then if the case is “close” to the line, he or she can then turn to some other methodological approach to determine the difficult cases. The whole point of a judicial methodology is to apply it to differentiate between cases under and over the line. Looking to the text simply to ascertain whether a purported meaning is close enough to the penumbra of the text to justify then turning to purposivism to fill in the detail is contrary to the very notion of textualism. Put another way, it is not textualism if the key question is not what tool should be applied but rather when should the justice to apply it.

Consequently, gay and trans activists, and those who support them, placing their hopes on Gorsuch being true to his purported judicial ideology is likely to lead to disappointment.  In fact, if Gorsuch is going to support that side of the arguments to any extent, the models make clear that it will be to support the gay complainants but to disappoint the trans complainants. This is in spite of the fact that the textual argument is much stronger in Harris than Bostock: the complainant in Bostock literally was fired for wearing a dress, which would have been permitted to anyone born a woman. The members of the Court, like much of society, have had more time to get used to the idea of people being gay than people being trans, and so find it easier to recognize and reject discrimination against gay people than trans people. To the extent Gorsuch will stray from his ideology, it would be in favor of the text but it will hinge more on that greater tolerance of gay people, and consequently greater tolerance of gender discrimination against trans people.

Prediction:

Title VII plaintiffs (Petitioner in Bostock, Respondent in Harris): Breyer, Ginsburg, Kagan, Sotomayor

Title VII defendants: Alito, Gorsuch, Kavanaugh, Roberts, and Thomas.

Most likely to switch: Gorsuch, but only in Bostock.

How to predict doctrinally complex and morally murky death penalty decisions?

In its first case of the 2019 Term, the Supreme Court heard oral argument in Kahler v. Kansas, on the question of whether insanity is constitutionally required to be an available defense to capital murder. Petitioner argued that, in particular, the test of whether a defendant knows right from wrong is constitutionally required, and so Kansas’s consideration of insanity solely as to whether a mental defect prevents the defendant from forming the requisite mens rea, plus consideration at the penalty stage, is inadequate.

One easy way to know that a particular justice is not buying an argument like Petitioner’s is when the justice gives a detailed recitation of the almost always grisly facts of the death penalty case. Justice Alito did just that, reminding everyone that Petitioner Kahler not only killed his estranged wife and her mother, but executed his two daughters in a seemingly premeditated and cruel fashion, telling one to stop crying as he slaughtered her and her family—except for her brother, who had shown more sympathy for their father and so was spared the carnage, if not the trauma. But predicting Justice Alito’s likely vote in death penalty cases is usually pretty easy; predicting some of the other justices’ votes is more difficult, and requires more sophisticated tools. The figure below provides an assessment of the likely votes of each of the justices, based on everything they said at the oral argument, as well as what they have said in every other case they have heard in their time on the Bench.

ScotusOA prediction based on the oral argument in Kahler v. Kansas. Described in the text.
ScotusOA prediction based on the oral argument in Kahler v. Kansas

Like the Supreme Court, ScotusOA took the summer off from empirically analyzing Supreme Court oral arguments. As such, a quick reminder (or an introduction for the uninitiated) is warranted to explain how we generate our predictions. We measure various aspects of each justices’ behavior at a given oral argument, and how that behavior is tilted to one side or the other. We call this the disagreement gap: the difference in the treatment of the two sides is a strong predictor of how the justices will vote. For instance, interrupting one side more or talking more during the time of one side are both strong predictors of ultimately voting in favor of the other side. We then put those variables in the context (using Bayesian updating) of each justice’s behavior in general at oral argument, to create a prediction for each justice, based on their particular style at oral argument generally.

The Kahler oral argument illustrates the value of taking this contextual (Bayesian) approach: Justice Alito was seemingly the strongest advocate for the Respondent’s position—and we use the term “advocacy” advisedly, based on prior research showing that the justices engage in considerable amounts of advocacy during oral argument. Yet, Justice Ginsburg pips him by 1% in her likelihood to vote for Respondent. Now 1% is obviously not statistically significant, but the fact that the liberal Justice Ginsburg is measuring as effectively equally likely as the conservative Justice Alito to vote against a death penalty defendant is significant. This prediction is a product of that aforementioned context: Justice Alito is very often extremely uneven in which side he directs most of his questions and comments to, whereas Justice Ginsburg is very rarely so tilted to one side. In the Kahler oral argument, she only spoke during the time of Petitioner, and that makes us confident that she will vote for Respondent.

A look at the substance of Justice Ginsburg’s questions supports this conclusion. She opened the questioning (after the first application of the new Supreme Court rule that gives advocates two minutes of uninterrupted speaking time) with a tough challenge for Petitioner’s advocate, Sarah Schrup: whether a judgment of “guilty but insane,” which would result in institutionalization rather than imprisonment or the death penalty, would satisfy the Constitution. She followed up with hypothetical variations that prevented Schrup from answering the question by looking to collateral harms, and then Ginsburg asked about whether the history was more complex than Schrup was implying. All of these were indications of her position, but the strongest indication was the fact that she didn’t ask equally tough questions of the other side, as she typically does.

In terms of predicting the case rather than individual justice’s votes, three justices were harder to analyze on the basis of oral argument: the Chief Justice, Justice Kavanaugh, and the perennially silent Justice Thomas. (Thomas was in fact absent due to illness. He will apparently participate in last Monday’s cases on the basis of the briefs and the transcripts.) Thomas is easy to predict in a similar contextual way, but looking at his votes, which overwhelmingly favor the state in death penalty cases. But the two justices most likely to be the median of the Court, Roberts and Kavanaugh, were far more evenhanded than any of the other justices in their questioning and other conduct.

Roberts asked tough questions of both Schrup and Toby Crouse, the advocate for Kansas, but asked nothing of the more persuasive advocate for the government’s side, Elizabeth B. Prelogar, representing the United States. She directly answered the tough questions that Crouse had struggled with—most memorably, Justice Breyer’s question of how Kansas can justify excusing by reason of insanity someone who commits murder because he deliriously thinks his victim is a dog, but executing a person who deliriously believes that a dog commanded him to commit the murder. Prelogar may have satisfied the Chief’s concerns with that side of the argument. Thus, although the numbers show him close to 50:50 but potentially tilting for Petitioner, we predict him more likely to vote for Respondent.

Kavanaugh was more focused on the detail of doctrine and history, and hammered both sides with significant challenges. Whether assessed qualitatively or quantitatively, Kavanaugh’s questions do not reveal his likely vote in this case. Based on the oral argument alone, he really is too close to call. In terms of looking to past opinions, Kavanaugh was not involved in one of the two big death penalty cases last year, Madison v. Alabama. He voted with the conservative majority in the other case, Bucklew v. Precythe, but wrote a separate concurrence emphasizing the narrowness of the opinion—that is, he rode a fine line in the case, and gave little away about his general proclivities in this area. We expect something similar in this case: either a narrow majority opinion in favor of Respondent written by Kavanaugh, or a narrowing concurrence by Kavanaugh.

Prediction:

Petitioner: Breyer, Kagan, Sotomayor

Respondent: Alito, Ginsburg, Gorsuch, Kavanaugh, Roberts, Thomas

Full disclosure: Petitioner’s advocate, Sarah Schrup, is a colleague of Tonja Jacobi’s at Northwestern Pritzker School of Law, and Jacobi helped moot Schrup in preparation for the oral argument. 

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