Supreme Court Justice Sonia Sotomayor speaks during a conversation with professor Melissa Murray of UC Berkeley School of Law at the American Constitution Society's National Convention. Credit: Diego M. Radzinschi/National Law Journal.

In the U.S. Supreme Court term that just ended, male justices interrupting female justices during oral arguments was at its second highest rate in 20 years, with Justices Sonia Sotomayor and Elena Kagan the most regularly cut off, according to an updated study.

The study, conducted by Tonja Jacobi of Northwestern University School of Law and Matthew Sag of Loyola University Chicago School of Law, covered the 2016 and 2017 terms and extended previous data to 20 years. Their earlier study showed that female Supreme Court justices are interrupted three times as often as the male justices, by both male justices and male advocates at oral argument.

Jacobi and Sag focused only on justice-to-justice interruptions for their update. Since 2010, they report, female justices have been disproportionately interrupted in every term. But in the 2016 term, for the first time, the ratio of female to male interruptions exceeded 2:1, and the ratio exceeded 2:1 again in the 2017 term.

Jacobi said comments by Justices Ruth Bader Ginsburg and Sotomayor after the earlier study was published indicated the court's behavior might change. Sotomayor said at a June event that the study had changed “some of the dynamics on the court.”

But the latest numbers don't bear out those comments, Jacobi said.

“I was really hoping to show the study has had an effect, but we still see the same path of highly gendered interruption,” Jacobi said.

The interruptions of Kagan and Sotomayor are driving the ongoing gender tilt of the Roberts court, according to Sag. Even adding Justice Stephen Breyer—the third most interrupted justice in the 2017 term—the gender differential is considerable.

In the 2017 term, conservative justices, including Chief Justice John Roberts Jr. and Justice Anthony Kennedy, interrupted their colleagues at three times the rate of liberal justices.

The number of interruptions overall has been increasing steadily in the last two decades: between 25 and 50 each term in the early 1990s and 2000s, according to the study.

During the Roberts court, the number has not dropped below 50, with the exception of the 2016 term when the court labored with eight justices. In the 2017 term, the number of interruptions exceeded 125. Sag and Jacobi said the data show the chief justice playing a more active role as referee during oral arguments.

In a recent post on SCOTUSblog, researcher Adam Feldman of Empirical Scotus looked at the rate of interruptions in the last term and reached different conclusions. Feldman wrote: “The oral argument interruption terrain appears to have changed this term when compared to previous terms. Although overall raw counts show that some female justices were interrupted at the high end of the spectrum, the figures for interruption frequency do not corroborate this point. Looking at interruptions only involving justices, female justices were not interrupted more frequently this term than male justices.”

Sag said Feldman's measure is slightly different: the number of words spoken. The more that a justice speaks, the more that justice will be interrupted.

“We look at the ratio of how much a justice is interrupted to how much that justice interrupts others,” Sag said. “What we see is Sotomayor and Kagan, in particular, get interrupted a lot more than they do interrupting. Kennedy and Roberts do a lot more interrupting than they are interrupted.”

They cautioned that it may be too early to test whether their study has had any effect on the justices' behavior during arguments because there is so much variation year to year.

“The 2016 term was a strange term,” said Sag, noting the number of low-profile cases and the vacancy that endured for nearly the entire term. “The 2017 term perhaps is going to be an anomalous term because it was Justice [Neil] Gorsuch's first full term and they took a backlog of more controversial cases. Just because we haven't seen an effect yet, doesn't mean we won't.”

 

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