Are the liberals (and women) on the Supreme Court too genteel for our good?

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Are the liberals (and women) on the Supreme Court too genteel for our good?

Post by jbuck919 » Mon Apr 17, 2017 7:05 am

Why Gorsuch May Not Be So Genteel on the Bench

Justice Neil M. Gorsuch at the White House last week with President Trump, Justice Anthony Kennedy, and his wife, Marie Louise Gorsuch. He will hear his first arguments from the Supreme Court bench this week. Credit Al Drago/The New York Times

WASHINGTON — Justice Neil M. Gorsuch is by all accounts the soul of courtesy, and he may have a hard time elbowing his way into the judicial crossfire that is the modern Supreme Court argument.

Justices interrupt one another all the time, and it may not be easy for the new justice to find his place and to raise his voice this week, when he hears his first arguments.

But a new study suggests that Justice Gorsuch has two things going for him: He is conservative, and he is male.

“Conservatives interrupt liberals at significantly higher rates than liberals interrupt conservatives,” the study, to be published in The Virginia Law Review, found.
And male justices, perhaps not surprisingly, interrupt female justices far more often than the other way around. “Even though female justices speak less often and use fewer words than male justices,” the study found, “they are nonetheless interrupted during oral argument at a significantly higher rate.”

Tonja Jacobi, a law professor at Northwestern University who conducted the study with Dylan Schweers, a law student there, said the ideological disparity reflected the balance of power on the court.

“Conservatives have dominated the court for the last 50 years, and, knowing that, they feel they are more in power than liberals feel,” Professor Jacobi said in an interview. “Interruptions are generally considered an aspect of dominance, and the conservatives feel dominant over the liberals. With Gorsuch entering the court, that’s going to reinforce that tendency.”

Gender, the study concluded, plays an even larger role.

The study considered 7,239 interruptions in arguments from 2004 to 2015. Of those, 32 percent were of women, and just 4 percent were by women.

Studies in other settings have shown that men tend to assert their power by interrupting women. Still, it is telling that the phenomenon persists at the Supreme Court.

“If female justices are consistently interrupted more than their male counterparts in this context,” the study said, “it would show that gender dynamics are so powerful to persist even in the face of high levels of power achieved by women.”

Male lawyers also interrupt female justices more often than male ones. (Female lawyers, it seems, never interrupt anyone.)

This is particularly surprising in light of the stern instructions the Supreme Court provides in a guide for lawyers preparing to argue before it.

“Never interrupt a justice who is addressing you,” the guide says. “If you are speaking and a justice interrupts you, cease talking immediately and listen.”

But such interruptions are not particularly unusual when male lawyers face questioning from female justices.
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In a 2015 argument in a big affirmative action case, a lawyer for a student challenging the University of Texas’ admissions program repeatedly interrupted Justice Sonia Sotomayor.

“Let me finish my point,” Justice Sotomayor finally told the lawyer.

The study had to grapple with one particularly contentious relationship. Justice Stephen G. Breyer, who is both liberal and loquacious, seemed to have a special knack for getting under the skin of Justice Antonin Scalia, who died last year. “Scalia interrupted Breyer at such an extraordinary rate as to dwarf all other interruptions,” the study found.

By comparison, Justice Scalia interrupted Justice Ruth Bader Ginsburg, another liberal, at just 15 percent of the rate at which he interrupted Justice Breyer.

“If we subtract Scalia’s interruptions of Breyer, and vice versa,” the study said, “then the only three justices who are interrupted more than 100 times are Ginsburg, Sotomayor and Kagan — the three female justices.” This is particularly telling, as Justice Elena Kagan did not join the court until 2010, and Justice Sotomayor joined it the year before.

The two general trends — conservatives interrupting liberals, and men interrupting women — are hard to disentangle these days, as all three women on the court are liberals.

The study addressed this overlap by looking at some older terms. In 1990, for instance, it found that Justice Sandra Day O’Connor, a moderate conservative who was then the only woman on the court, was interrupted 2.8 times as often as the average male justice.

That suggests that ideology and gender are independent factors. Between the two, Professor Jacobi said, gender seems to play the larger role. “And that’s pretty remarkable,” she said, “because ideology has been shown to influence everything in judicial behavior.”

Seniority also figures in almost everything at the Supreme Court, and it may be that more senior justices feel entitled to interrupt more junior ones. Until Justice Gorsuch joined the court, the two most junior members were Justices Sotomayor and Kagan. But Professor Jacobi said the explanatory power of seniority was relatively minor. “Both gender and ideology are much more significant,” she said.

I fear I interrupted Professor Jacobi to ask whether these trends tell us anything about how Justice Gorsuch is likely to act, given his mild and courteous manner.

“If we know going in that he’s a conservative male,” she replied, “then we would think there’s a good chance that he would be an interrupter.”

Chief Justice John G. Roberts Jr.’s behavior on the bench, she said, may provide a valuable comparison.

“Chief Justice Roberts is a very polite man,” she said. “He seems to care about decorum. He cares about the reputation of the court. And he’s one of the biggest interrupters, interestingly. I see Gorsuch as somewhat similar in style to Roberts.”

“I don’t think that a lot of men notice that they’re doing this,” Professor Jacobi said.

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Re: Are the liberals (and women) on the Supreme Court too genteel for our good?

Post by John F » Mon Apr 17, 2017 8:47 am

What finally counts is not who interrupts whom and how often during the public oral arguments, but what they do in private: how they vote and what they say in their written opinions. Justices Ginsberg, Sotomayor and Kagan are by no means intellectual doormats. That said, I'm inclined to think that common courtesy is at least as effective a tactic as Scalia-style boorishness. The article doesn't deal with that, or with the manner of the interruptions, it merely keeps score.
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