Female Justices Were Cut Off More Than Colleagues During Phone Arguments, Study Says
"This snapshot can only tell us so much," law professor Leah Litman, author of the new report, writes. "There were a mere ten arguments over a two week period, and this format was new to everyone."
May 20, 2020 at 03:25 PM
5 minute read
The original version of this story was published on National Law Journal
During this month's historic telephonic arguments in the U.S. Supreme Court, Chief Justice John Roberts Jr. interrupted or cut off questioning by his colleagues 11 times, nine of which were of women and all of which were of the court's liberal justices, according to a new study.
Roberts interrupted Justice Sonia Sotomayor the most, even though she had only one of the longest 14 questioning periods, the 10th longest, said the study's author, Leah Litman of the University of Michigan Law School.
Sotomayor tied with Justice Neil Gorsuch in speaking the most per questioning period, but the chief justice never interrupted Gorsuch, even though he had, with Sotomayor, the longest average questioning period.
Roberts, as timekeeper, kept a tight script, limiting lawyers and the justices to a set amount of time. Roberts regularly cut off lawyers, and at times he would tell them "briefly counsel" or to take a minute to "wrap up."
"I doubt CJ Roberts purposely exercises ideological favoritism here. I hope making him aware of the pattern will help him better execute the tough job of running a meeting while participating in it," Richard Primus of the University of Michigan Law School said on Twitter.
Justice Ruth Bader Ginsburg was interrupted many times, even though she had the third shortest average questioning period and the second shortest total time speaking over the two-week session. Like Gorsuch, Justice Brett Kavanaugh was never interrupted, even though he had the longest total talking times in two of the cases where Roberts interrupted other justices—Trump v. Mazars and Trump v. Vance. Those two questioning periods were also two of the three longest questioning periods in any case.
Litman's findings partly reflect a broader 2017 study of oral arguments by Tonja Jacobi of Northwestern University School of Law and Goodwin Procter's Dylan Schweers. In the 2017 analysis, the authors reported that female justices were more likely to be interrupted than male justices and less likely to be allowed to speak when interrupted and that conservative justices also were more likely to interrupt than liberal justices.
Litman acknowledged in the study that the May argument data provide "some very limited insight" into the court's dynamics.
"This snapshot can only tell us so much," she wrote. "There were a mere 10 arguments over a two-week period, and this format was new to everyone. But it is still interesting to see how the court and the various justices adapted to this new format." She added, "The chief justice appeared to try to moderate arguments evenhandedly, and he accomplished that in many respects."
Here are some other findings of the study:
>> The longest questioning periods were during the cases involving the Affordable Care Act's contraception coverage requirement, subpoenas for President Donald Trump's financial records, and the ministerial exemption from anti-discrimination statutes.
>> Roberts spoke less than any other justice. Justice Samuel Alito Jr. spoke the most, followed by Kavanaugh and then Sotomayor.
>> Alito had the single longest questioning period—by more than a minute—in the contraception case, Little Sisters of the Poor v. Pennsylvania. Kavanaugh had the second longest during Trump v. Mazars, the challenge to House committee subpoenas for Trump's financial documents.
>> Ideological balance in questioning time appeared to break down during the Trump cases, Mazars and Trump v. Vance. In the Mazars subpoena case in particular, Alito and Kavanaugh spoke for more time than their colleagues. In the Vance grand jury subpoena case, three of the four justices speaking the longest were conservative justices. "The disparities between the length of time they spoke and the length of time their liberal colleagues spoke is striking," Litman wrote.
For another examination of the first-ever May arguments, empirical scholar Adam Feldman looks at four arguments on his empirical SCOTUS blog. He reported that the argument structure in which Roberts timed questions and responses and called on justices by seniority "allows attorneys more room to participate as they are only asked questions by one justice at a time. The justices appear more engaged by these numbers as well as they both speak more in total and per turn talking."
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllPlaintiffs Seek Redo of First Trial Over Medical Device Plant's Emissions
4 minute readInsurers Dodge Sherwin-Williams' Claim for $102M Lead Paint Abatement Payment, State High Court Rules
State Appellate Court Relies on 'Cancellation Rule' for Expert's Conflicting Testimony
Trending Stories
- 1Tuesday Newspaper
- 2Judicial Ethics Opinion 24-85
- 3Decision of the Day: Administrative Court Finds Prevailing Wage Law Applies to Workers Who Cleaned NYC Subways During Pandemic
- 4Trailblazing Broward Judge Retires; Legacy Includes Bush v. Gore
- 5Federal Judge Named in Lawsuit Over Underage Drinking Party at His California Home
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250