Chief Justice Roberts Changes SCOTUS Argument Procedure, Capable Of Shame

The Chief Justice wants to put an end to a disturbing trend.

(Screenshot via PBS NewsHour/YouTube)

It all started in 2017, when an academic study proved something professional women know all too well — gender plays a role in how much you get interrupted and that is true even when you’re on the Supreme Court. The study looked at oral arguments from the 2017 Term as well as from years when female jurists joined the Court, tracking not only when male justices interrupted but also when male attorneys appearing before the Court felt the need to say their piece. The results — well, they weren’t what you’d call encouraging.

According to the study authors, there was a definite trend:

We found a consistently gendered pattern: In 1990, with one woman on the court (Justice Sandra Day O’Connor), 35.7 percent of interruptions were directed at her; in 2002, 45.3 percent were directed at the two female justices; in 2015, 65.9 percent of all interruptions on the court were directed at the three women on the bench.

And it wasn’t the only time Court observers noticed a gender problem. Adam Feldman, of the fantastic Empirical SCOTUS, tracked the number of interruptions by fellow justices during the 2016 Term, and found the women justices did not fare well.

But things may have finally turned a corner. Sonia Sotomayor — a justice who, unfortunately, has gotten used to being interrupted over the years — says that these studies had an “enormous impact” on Chief Justice John Roberts, and that as a result he’s “much more sensitive” to limiting interruptions or playing referee if needed. Apparently the years of studies and reports on the issue has had the desired impact, and Roberts has enacted new argument procedures. As reported by CNN:

The court’s new system at oral arguments has been most evident this term now that the justices are back in open court. So far, even in contentious cases, the justices haven’t cut each other off — something that often occurred in past terms. The traditional format has been changed to allow each justice — once an attorney’s time has expired — to ask specific questions in order of seniority.

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Sotomayor’s comments came during a talk at New York University School of Law last week. She also noted that it was a problem she’d clocked before, saying she’d noticed it “without question” and sometimes, she’d respond in kind: “I interrupt back.” And she acknowledged this issue is a lot bigger than the dynamics at the Court: “Most of the time women say things and they are not heard in the same way as men who might say the identical thing,” she said.

Maybe more managers would do well to take a page from Roberts’s book and actually try to do something about it.


Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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