I feel like I am late to the party. Years ago, in 2017, Tonja Jacobi and Dylan Schweers wrote an influential article showing female Supreme Court Justices were disproportionately interrupted by male Justices and advocates. Fortunately, because Professor Jacobi sent me an old school hard copy of her newest article, I am now aware of her previous work and her new article co-authored with Matthew Sag. This new piece examines how, if at all, the atmosphere has changed at the Supreme Court. The short answer is some is the same. Some is different.
In the first article, Professor Jacobi and Schweers discovered a historical increase in interruptions since the 1990s and also that there was a gendered aspect to interruptions. Between 2004 and 2015, female Supreme Court Justices were interrupted up to three times as much as their male colleagues. After this first study was released, the Supreme Court actually made some change to its oral argument structure. Among other changes, during oral argument, each Justice has dedicated time to engage with advocates.
In this new piece, Professors Jacobi and Sag follow-up on whether gendered interruptions lessened and whether Chief Justice Roberts intervened more as a referee in the last five years. The study matters because oral argument is important for the Justices and for the public. In addition to Justices obtaining information and asserting power that can affect coalitions and the ultimate opinion, oral argument serves a role to give legitimacy to the decision-making of the Court.
I imagined a study like this would be difficult particularly because of the coding. Turns out, however, coding for interruptions was easy because of the manner in which the court reporter transcribes the oral argument. The authors acknowledge that it was more difficult to code interventions. For example, many different words are used when the Chief Justice intervenes.
The study examines four different eras including part of the Rehnquist era and three different eras of the Roberts Court. From 1997-2004, female Justices were interrupted 16% more than their male colleagues. From 2005-2008, they were interrupted 70% more than their male colleagues. From 2009-2018, females Justices faced interruption 108% more than males. Finally, from 2019-2021, interruptions were 53% higher for female Justices. It’s not a pretty picture, and the latter numbers, which are better, may be the result of the pandemic.
We learn other interesting information. Justice Kennedy regularly interrupted other Justices, and the Justices interrupted Justice Sotomayor most commonly. We also learn that when Justices realize they have interrupted another Justice, they defer more to their male Justices than the female ones who were interrupted. Additionally, the article shows that Justices interrupted Justice Barrett 50% more than male Justices. However, Justice Barrett was interrupted less frequently than the liberal female justices.
Like the first study, the article also studies interruptions of Justices by advocates. Unlike the Justice-to-Justice interruptions, there are signs that the gender disparity in interruptions by advocates is disappearing.
After setting forth its findings on interruptions, the article addresses whether the Chief Justice has intervened more and if he intervenes because of the gendered nature of interruptions. For the most part, the article shows an increase of interventions over time and shows that the Chief Justice intervened much more often to the benefit of female Justices who were interrupted. There are other interesting findings, such as the Chief Justice protects Justice Alito the most and Justice Gorsuch the least—findings that may be consistent with other reported relationships and dynamics.
To say the least, the first article and this one are troubling. Gender matters, and even when we know it matters, behavior does not always change. On the other hand, there is some hope with the actions of the Chief Justice. Although he rarely intervenes, consciously or not, his actions show an acknowledgment of a serious problem and that he is trying to help correct the problem.
I have huge admiration for the work of Professors Jacobi and Sag and Dylan Schweers who, through their careful study, keep the public and the Court aware of phenomena that could affect the ultimate decision-making of the Court and, thus, the course of the law.
