In the cloistered world of Supreme Court litigation practice, oral argument is supposed to be the ultimate test of a lawyer’s mettle. For anywhere between 30 minutes to well over an hour, advocates stand alone before the justices, deftly parrying pointed questions and navigating byzantine hypotheticals in an unwaveringly polite tone. Because time is so scarce, interruptions from the justices are frequent and expected; official Court guidance even warns advocates that if a justice breaks in, they should “cease talking immediately and listen.” Often, lawyers will preface their response with polite thanks to whoever just cut them off mid-sentence.
In theory, these interruptions are an integral part of the lawmaking process: Through the ritual of oral argument, the country’s nine wisest lawyers engage in a warp-speed proxy debate with one another, teasing out the most important issues in the high-stakes cases they will eventually decide. But in reality, interruptions during Supreme Court oral argument are part of an even older time-honored tradition: dudes in positions of power who love hearing the sound of their own voice.
This is, more or less, the conclusion of a recent study by a group of researchers at UMass Amherst and Williams College, who examined the oral argument transcripts of some 3500 Supreme Court cases decided between 1982 and 2019 to figure out which lawyers are getting interrupted most often, and who is doing the interrupting. On the whole, the researchers found, justices interrupt advocates about 25 percent of the time. But the justices—all of them—interrupt female lawyers more often than they interrupt male lawyers, and male justices interrupt female lawyers more often than female justices.
Even after accounting for other possibly relevant factors—a lawyer’s experience, their speech fluidity, and the perceived alignment between their argument and a given justice’s ideology—gender is “the primary factor driving interruption behavior among most justices,” the authors conclude.
When you hear a woman talking (Photo by Chip Somodevilla/Getty Images)
The effect is even more pronounced among the Court’s more conservative members: Of the eight conservatives in the data set, seven interrupt women more frequently than men. Chief Justice John Roberts and Justices Sandra Day O’Connor, Anthony Kennedy, and Antonin Scalia are especially egregious offenders: O’Connor and Roberts, for example, interrupt women lawyers more than twice as frequently as they do male lawyers. Only four justices—Sonia Sotomayor, Elena Kagan, Thurgood Marshall, and (just barely) Warren Burger—are more likely to interrupt men than women. However, the authors emphasize that due to uncertainty inherent in their estimates, they “cannot confidently say…that any justice interrupts male advocates most frequently in comparison to female advocates.”
Legal luminaries often tout the profession’s ostensibly great strides with respect to gender equity. In 2016, women outnumbered men in law schools for the first time, and hit an all-time high of 55.3 percent of enrollees in 2021. Yet women remain woefully underrepresented in the profession’s elite circles: They comprise about 14 percent of the 4000-plus lawyers included in the study, and even during the Court’s 2020-21 term, only 18 percent of Supreme Court oralists were women. As the study’s authors write, their findings show that the issue is not just one of representation within the legal system, but also extends to “a shortfall in the ability of women to actively participate even once they appear before the Court.”
Given that the Court went nearly two centuries without a woman justice—when O’Connor took office in 1981, the building did not even have a private restroom for her—perhaps it is unsurprising that the institution has a “problem” with entrenched sexism. Given that the Court’s conservative supermajority recently ended the right to abortion care after five decades of trying, and includes two justices who were confirmed despite credible allegations of sexual misconduct against them, perhaps it is unsurprising that the problem is particularly acute on the Court’s right wing.
Even so, the study is a grim reminder of the scale of this conservative supermajority’s power: The justices aren’t just deciding cases in ways that make the country less free and less safe for women. They are also happy to talk over any woman who might come before them to protest.
