The Ultimate Mansplainers: Supreme Court Justices

Courtus Interruptus

Back in 2014 when Rebecca Solnit penned her essay “Men Explain Things to Me”, the term mansplaining took off. Most women could immediately identify with the phenomenon and embraced the term with mirth. Only last week, I had to call out a male friend for mansplaining. While he was surprised by my response, he quickly apologized saying that was not the way his comments (e.g. telling me how to run a survey) were meant to be interpreted. Many chuckle a bit when bringing up the term, but in reality, mansplaining and it’s similar cousin, interrupting, has a powerfully negative influence on our culture. And nowhere is it more important than at the Supreme Court. In a 2017 study, Tonja Jacobi, a law professor at Northwestern University, completes a deep dive into the number of interruptions that occur during Supreme Court arguments. The research goes back 55 years to look at the effect of gender, ideology, and seniority in the number of interruptions that occur both between Justices and with Justices and advocates arguing before them. Let’s take a quick look at what she found.

Interruptions

Jacobi’s research finds that female Justices are interrupted more than male Justices by both other male Justices and by male advocates. She also found that the Chief Justices, both Roberts, and Rehnquist, did not evenly enforce the rules of decorum regarding interruptions. There are not supposed to be any interruptions of Justices, but many are allowed, especially of women.

Ideology

The research reveals that Justices interrupt one another more when they are of differing ideologies. More specifically, she found the conservative Justices interrupt liberal Justices more frequently. These interruptions serve to put forth their point of view or leanings more forcefully and to drown out differing views. Additionally, conservative Justices interrupted advocates of their opposing view more frequently.

Seniority

The research illustrated that seniority only had a small effect on the number of interruptions. The only significant effect that seniority held was that once women were on the Court for a while, their speech became more direct, like the male Justices. To avoid interruption, they no longer used more polite phrasing like, “May I ask a question?”

Why is this important?

The oral arguments are an incredibly important part of the Supreme Court Justice’s preparation for deliberation on issues important to all Americans. As Jacobi explains,

“These three variables do not operate in isolation, but rather compound, such that senior male conservative Justices are far more likely to interrupt junior female liberal Justices. All of our results were consistent throughout the Roberts Court and further back in time, all the way to the 1990 Term.”

The female Justices get less time to ask their questions and receive responses. As Justices carefully prepare for oral arguments, they have a list of questions and points that they want to explore. Justices ask questions of advocates in order to direct the conversation or to help build coalitions. When Justices cannot get responses to their questions, they lose their ability to make arguments in later deliberations. They are hindered from learning what they need to know in order to make sound decisions. Jacobi’s findings also point toward a more conservative ideology being allowed to proliferate through interruptions. We must be concerned about the effect on decisions. As Jacobi notes,

“Because women, liberals, and junior Justices are all interrupted at significantly higher rates than the other members of the Court, this could ultimately lead to more conservative coalitions, and, potentially, more conservative decisions and reduction in the influence of women and younger Justices.”

In a more recent study by Jacobi, Johnson, Ringsmuth, and Sag regarding the switch from live oral arguments to telephonic arguments in light of the pandemic, the researchers found that Chief Justice Roberts “ knowingly or unknowingly, used that new power to benefit his ideological allies. We also show that the Chief interrupted the female Justices disproportionately more than the male Justices and gave the male Justices more substantive opportunity to have their questions answered.” I don’t know if you listened to any of the arguments, but when I listened to the Little Sisters of the Poor case, I noticed and was very frustrated at how little time the female Justices were given. And that was before I knew about this research!

As we look toward the future with the absence of Justice Ginsburg, it will be interesting to see if she is replaced by Amy Coney Barret as the Republicans seem poised to do. If so, will she be interrupted as much as the liberal female Justices? Or, as a conservative, will she interrupt liberals more? What we do know, however, is that as a conservative Justice, she will have the upper hand in terms of the Chief Justice being unlikely to interrupt her as much as Justices Sotomayor and Kagan.

Originally published at https://chaiselounge.substack.com.

I am curious about so many things and love researching and writing about things I find interesting. https://chaiselounge.substack.com

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