Bloomberg Law
March 30, 2023, 4:01 PM

Female Justices Still Interrupted at Argument, But Barrett Less

Tonja Jacobi
Tonja Jacobi
Emory University School of Law

In a 2017 study that received international attention, my coauthor and I showed that female US Supreme Court justices were treated quite differently than their male peers at oral argument. The female justices were interrupted more, by both fellow justices and by advocates—in some terms as much as three times more.

Most women have experienced being interrupted more than the men around them. But the fact that this sad truth applied to Supreme Court justices was shocking. Usually, more powerful people are interrupted less.

And yet these justices, some of the most powerful women in the world, are being interrupted by not only their male colleagues but also by advocates, who are explicitly instructed never to interrupt a justice. Things had to change. But did they?

According to Justice Sonia Sotomayor, in 2021, the court changed the rules of oral argument to try to combat this gender disparity. The court’s efforts were likely driven not only by concern about equality but also concern for the court itself and its reputation.

I have just completed a new study, co-authored with Matthew Sag of Emory Law School, that looks at whether that rule change has helped solve the problem of gendered interruptions.

The Pandemic Experiment

Usually at oral argument, justices jump in with their questions whenever they feel like it. Sometimes that means they talk over each other, but consistently, the women get talked over more than the men. The advocates are strictly forbidden by the Supreme Court’s rules from interrupting the justices, and yet they, too, interrupt.

But during the pandemic shutdown, oral argument was very different. Each justice was allotted a set amount of time to talk with each advocate, and consequently there were few opportunities for interruptions. On returning to in-person oral argument, to try to allow each justice to speak without so many interruptions, the court opted to combine the two approaches.

Under the new system, after an interactive, dynamic stage, each justice is given an exclusive period to converse with each advocate. The hope was that this would calm things down and stop so many interruptions, particularly the disparate gender effect.

Mixed Results

Did the experiment work? The results are mixed. In terms of justice-to-justice interruptions, it is hard to see any improvement.

The figure below shows the number of these interruptions over time. While interruptions went way down in 2020, when the court was hearing oral argument telephonically and with each justice speaking in turn, there were indeed almost no interruptions.

But that peace was short-lived. Once the court returned to an interactive, in-person atmosphere, in the 2021 term (during the years 2021–2022), interruptions went back up again.

Not only did interruptions go back up to near the highs of the pre-pandemic time, but so too did the gender disparity. As the figure below shows, in the last two decades, the rate at which the female justices, in squares, are interrupted by their colleagues sits consistently higher than the rate for male justices, in circles.

After a year of equality in 2020, the gender division is back up in 2021–2022. In the court’s most recent completed term, the female justices were being interrupted 123% times more than the male justices.

Advocates Minding Their Manners

But it is not all bad news for court reformers. Our new study shows that, for the first time in many years, the advocates are not interrupting the female justices any more than they are interrupting the male justices.

It has only been one term under the new oral argument format, but it looks promising that, when given some extra time and an opportunity to talk individually with the justices, the advocates have learned that all Supreme Court justices deserve respect and a chance to finish their questions.

One thing remains unchanged: The male advocates are still doing more of the interrupting. Change takes time, even with the power of the Supreme Court pushing for the reform.

Barrett Interrupted Less

Another development is that for the first time, there is a truly conservative female justice, Justice Amy Coney Barrett, on the court. At the time of the initial study, all the female justices were liberal, like Justice Sonia Sotomayor, or sat at the center of the court ideologically, like Justice Sandra Day O’Connor.

Since we also found that conservative justices interrupt liberal justices disproportionately, we could only wonder: How would a conservative woman be treated?

In the new study, we show that, in terms of interruptions, Barrett is treated differently to the male conservative justices, but still not quite like the liberal female justices.

In the 2021 term, Barrett was interrupted by another justice an average of 0.65 times per oral argument. This figure is notably lower than the other female justices, who were interrupted at a rate of 0.97 times per argument—almost 50% more often than Barrett.

But the rate of interruption of Barrett was also significantly higher than that of the six male justices, five of whom are conservative. The men were interrupted at a rate of 0.39 times per argument—almost 50% less often than Barrett.

These differences were all statistically significant. That means that Barrett is interrupted significantly less than the female liberal justices, but statistically significantly more than the male conservative justices.

Gender, Ideology, and Who Gets to Speak

Oral argument is the only part of the Supreme Court’s decision-making process that is transparent to the public. The court has taken a battering in public opinion recently, especially after the Dobbs opinion, which abolished women’s right to choose whether to continue a pregnancy.

As such, it is vital that each justice has an equal opportunity to have their voices heard at the court, and that the court be seen as treating its members equally.

The fact that Barrett, a conservative woman, is interrupted significantly more than her male ideological colleagues, but less than other female justices who are liberal, confirms that both ideology and gender are significant factors in determining who gets to speak at Supreme Court oral argument.

There is still differential treatment at the Supreme Court, the institution meant to ensure equality throughout the nation.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Tonja Jacobi is is a professor of law and the Sam Nunn Chair in Ethics and Professionalism at Emory Law School.

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