Will Gorsuch pardon the interruption?
Judge Neil Gorsuch is set to become the newest member of the Supreme Court on Wednesday. That means that the most junior justice on the court will be a man, in contrast with the past nine years, when Justice Sonia Sotomayor and then Justice Elena Kagan each held that title. During that time, the two female justices were interrupted during oral arguments far more often than the other justices on the court. Some might say that is because they were junior; we predict that the soon-to-be Justice Gorsuch will nevertheless be interrupted far less than those two female justices.
Our new empirical study, forthcoming in the Virginia Law Review, shows that the male justices interrupt the female justices approximately three times as often as they interrupt one another. We examine the transcripts of Supreme Court oral arguments over 15 years and find that many male justices are now interrupting female justices at double-digit rates per term, but the reverse is almost never true. In the last 12 years, when women made up on average 24 percent of the bench, 32 percent of interruptions were of the female justices, yet only 4 percent of interruptions were by the female justices.
These results are not limited to Chief Justice John Roberts Jr.’s court. In 1990, 35.7 percent of interruptions were directed at the sole woman on the court, Justice Sandra Day O’Connor; in 2002, 45.3 percent were directed at the two female justices, O’Connor and Justice Ruth Bader Ginsburg; in 2015, 65.9 percent of interruptions were directed at the three women on the bench: Ginsburg, Sotomayor and Kagan.
Supreme Court justices are some of the most powerful individuals in the country, yet the female justices find themselves interrupted not only by their male colleagues, but also by their subordinates: the male advocates who are attempting to persuade them. Despite strict rules mandating that advocates stop talking immediately when a justice begins speaking, interruptions by male advocates account for approximately 10 percent of all interruptions. In contrast, interruptions by female advocates account for approximately 0 percent. The situation only seems to be getting worse with more women on the court. In 2015, male advocates interrupting Sotomayor were the most common interruptions on the bench, and accounted for 8 percent of all interruptions.
Anyone watching then-candidate Donald Trump repeatedly interrupt Hillary Clinton during the presidential debates would be familiar with this behavior. But is this domineering behavior because she is a woman or because she is a Democrat? We find support for both hypotheses. Liberal justices are interrupted more than twice as often as conservative justices, both by other justices and by the advocates. Yet gender is even more important than ideology: In 1990, the moderately conservative O’Connor was interrupted 2.8 times as often as the average male justice.
Similarly, seniority does not explain the gender pattern. Although senior justices do interrupt junior justices more frequently than vice versa, gender is approximately 30 times more powerful than seniority. Length of tenure still matters though: We show that, with time, women adapt by becoming more verbally aggressive, framing their questions less politely and leaving less room for interruption.
These behavior patterns are important as oral arguments shape case outcomes. When a female justice is interrupted, her concern is often left unaddressed, which limits her ability to influence the outcome of cases. The chief justice should play a larger role as referee, enforcing the existing rule that prohibits advocates from interrupting the justices and preventing an interrupting justice from continuing with his question. Research like ours has the potential to open the eyes of the justices to what are probably subconscious biases.
Tonya Jacobi is a professor at Northwestern Pritzker School of Law. Dylan Schweers is a J.D. candidate at Northwestern Pritzker School of Law. They wrote this commentary for The Washington Post.