Women Justices Cut Off More, Spoke Less In Phone Hearings

By Hailey Konnath
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Law360 (May 20, 2020, 10:07 PM EDT) -- Women justices participating in the U.S. Supreme Court's first-ever teleconference hearings were interrupted significantly more often than their male colleagues and were given less overall speaking time, according to a report published Tuesday.

The study, compiled by University of Michigan assistant professor Leah Litman, analyzed the high court's 10 telephone arguments during the first two weeks of May. During those historic hearings, each justice was permitted to ask questions for an allotted period and Chief Justice John Roberts was tasked with policing each of the justice's time limits.

According to Litman's study, Justice Roberts interrupted the other justices during questioning periods 11 times, nine of those times interrupting women.

"The interruptions were markedly gendered and ideological," Litman said.

Litman called the interruptions "interesting" because they were seemingly unconnected to the length of the women's questioning periods. Justice Sonia Sotomayor was cut off the most even though she spoke less than Justices Samuel Alito Jr. and Brett Kavanaugh.

"While she did speak, per questioning period, the most of any justice (tied with [Justice Neil Gorsuch]), the chief justice never interrupted Justice Gorsuch," Litman said. She added that Justice Ruth Bader Ginsburg was also interrupted multiple times even though she had the third-shortest average questioning period and the second-shortest total time speaking.

"The disparities are also striking because the chief justice made various accommodations for other justices who asked questions as the chief attempted to end a questioning period," Litman said.

For instance, Justice Alito was able to carve out significant additional time for himself during multiple questioning periods, but Justice Sotomayor was given only seconds after requesting additional time in one hearing, per the report.

In general, Justice Roberts permitted conservative male justices — in particular, Justice Alito — to speak more than their liberal and female counterparts, Litman found.

"Again, perhaps unsurprisingly, the three shortest questioning periods the chief allowed were for his female colleagues," Litman said. "Indeed, half of the shortest questioning periods the chief allowed were for his female colleagues even though they make up only one-third of the court."

Litman's report referenced a 2017 study conducted by Northwestern University law professors Tonja Jacobi and Dylan Schweers that found female justices were more likely to be interrupted than male justices and also less likely to be allowed to speak when interrupted.

An earlier report, released in 2016, found that Justice Sotomayor and Justice Elena Kagan were interrupted the most during oral arguments that term, with both women having their line of questioning or observations broken into nearly twice as often as the next six justices, five of whom are male.

Examining the interruptions in the new remote format could be helpful for Justice Roberts to "better enforce the stated rules for the different justices," Litman said in her report.

"Additionally, the data provide some very limited insight into the behind-the-scene dynamics at the court and among the different justices," she said.

The Supreme Court kicked off its historic two-week teleconference session on May 4, a move the court had resisted for years before reluctantly embracing it during the COVID-19 pandemic. The court provided a livestream of its oral arguments to Fox News, The Associated Press and C-SPAN to broadcast.

The hearings were largely deemed a success, despite a few bloopers including an unexpected toilet flush, among other mute-button blunders.

In Tuesday's report, Litman noted it was the court's first attempt at the new format and a limited sample of only 10 hearings.

"By some metrics, the chief justice succeeded in attempting to make the arguments and the various justices' participation evenhanded," she said. "In other respects, he probably fell short of what the ideal might look like."

Regardless, "it's possible that if the format continues, the court will get better at it," Litman said.

--Additional reporting by Jimmy Hoover. Editing by Orlando Lorenzo.

For a reprint of this article, please contact reprints@law360.com.

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