Constitutional Law Litigation

Hush Your Pretty Little Mouth: Gender and Interruption at the Supreme Court

In Adam Liptak’s NY times column today, he reports about a Northwestern University Law School study that examined the esoteric issue of interruptions in Supreme Court arguments.The study looked at 7,239 interruptions of justices and lawyers by other justices and lawyers occurring between 2004 through 2015. Now, that’s a lot but interruptions are part of oral argument at teh Supreme Court with lots of big egos in the room arguing complex and important issues. Here are some of the study’s findings:

1. Only 4% of those interruptions were by women.
2. Conservative justices interrupt liberal justices at a significantly higher rate
3. 32% of the interruptions were of women – a strikingly high number when considering that the Court has only had three women since the addition of Elena Kagan in 2010. If you take out the interruptions between Stephen Breyer and Antonin Scalia, who notoriously battled verbally against each other during oral arguments – the gender disparity jumps even higher.
4. Male lawyers were even more likely to interrupt female justices – a real no-no at SCOTUS where the argument guide strictly admonishes lawyers: “Never interrupt a justice who is addressing you. If you are speaking and a justice interrupts you, cease talking immediately and listen.”
5. The higher rate of interruption of women is further significant because the study also found that female justices speak less often and use less words a than male counterparts.
6. None of the interruptions were by female lawyers – the only women who interrupted during this period were the female justices.
7. Since all of the current females on the Court are liberal, the study wanted to distinguish between interruptions by ideology and gender, so it took a detour and went back to 1990 to see how conservative female jurist Sandra Day O’Connor fared during her tenure. Sure enough, she was interrupted nearly three times more often that the eight male justices. So gender trumped ( no pun intended) ideology.

By Ipankonin – Vectorized fromSVG elements from, Public Domain,

So what does it mean and why does it matter? First of all, it means Neil Gorsuch (conservative and male) should have a lot of time to speak his mind. Second of all, it reflects that gender dynamics, common in offices and other work spaces, exists even at an institution like the Supreme Court – something to ponder during Women’s Equality Month. Finally, as Professor Tonja Jacobi, the Northwestern law professor who, along with law student Dylan Schweers, conducted the study notes “Interruptions are generally considered an aspect of dominance.” This tone and aura of dominance during oral argument can impact a lawyer’s presentation; a justice’s hearing of the case; and can subtly stifle further inquiry and conversation.

The study is to be published in the upcoming Virginia Law Review. The full article can be found HERE

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