openpolitics.com

Evidence from recent Supreme Court arguments suggests that the chief justice, like most people, may have ideological and gender blind spots.

Chief Justice John Roberts would like us to think that Supreme Court justices are mere umpires who “don’t make the rules” but simply “apply them.”

When President Trump criticized what he saw as an unreasonable ruling by an “Obama judge,” the chief justice said, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.”

Yet at Supreme Court oral arguments, chief justices have applied rules of the court with very real differences among justices depending on their partisan appointment: Justices appointed by Democrats have been interrupted more frequently than justices appointed by Republicans. And women have been interrupted more frequently than men.

And recently, as the court conducted oral arguments over the phone, it was Chief Justice Roberts himself who did the uneven interrupting in his role as timekeeper.

The pattern of interruptions reflects the reality that Supreme Court justices, like everyone else, are susceptible to bias. It is an unfortunate reality that women are often perceived as talking too much even though studies show that they talk less than men. And it is also the case that people like to hear things they already believe — and interrupt those with whom they disagree.

The same pattern manifests at the Supreme Court.

Normally, Supreme Court arguments are unstructured sessions in which any justice can ask any question at any point in the argument. Justices sometimes interrupt one another and the advocates, and some advocates even interrupt justices.

A 2017 study showed that the interruptions at the Supreme Court are both gendered and ideological. The study, which focused on the Roberts court as well as two earlier Supreme Court terms from the Rehnquist and Burger courts, found that female justices were interrupted at disproportionate rates by their male colleagues and by male advocates. Male justices interrupt more than female justices, and male justices interrupt their female colleagues more than their male colleagues. The interruptions do not reflect female justices’ participation in arguments: Female justices do not talk more than their male colleagues.

The same study also showed an ideological bias in interruptions. Both Democratic-appointed and Republican-appointed justices are more likely to interrupt a justice with whom they disagree. But the conservative justices interrupt their liberal colleagues at higher rates than the liberal justices interrupt their conservative colleagues.

The Covid-19 pandemic has sharpened these divisions. Last month, the court held oral arguments over the phone, and the justices spoke in order of seniority.

The new format shifted more responsibility to the chief justice. In the court’s usual argument structure, the chief justice’s role is to “referee” among justices when more than one speak at the same time. But in the new format, the chief justice was tasked with ensuring that each justice had the opportunity to speak for roughly the same amount of time. That gave the chief justice the power to decide when to end each justice’s time for questions (unless the questioning justice concluded it).

Looking at all the cases together — 10 in total — the chief justice arguably succeeded at being evenhanded. The justices who spoke the most, per questioning period that they used, were Justice Neil Gorsuch and Justice Sonia Sotomayor, who represent different wings of the court. Justice Samuel Alito also spoke for a similar amount of time.

But the devil is in the details, and in some striking respects, the chief justice fell short of the ideal of the neutral umpire. The three justices who were allowed to speak the most in the very politically salient cases — the two cases about the president and one about access to contraception under the Affordable Care Act — were conservative men: Justice Brett Kavanaugh had two of the longest amounts of time in a case, and Justice Alito had the other. The justices who received the three longest individual questioning periods were also all conservative men: Justice Alito had two such periods, and Justice Gorsuch had the other. By contrast, the justices who received the three shortest questioning periods that the chief justice ended were all liberal women: Justice Ruth Bader Ginsburg had two, and Justice Elena Kagan had the other.

When it came to the controversial topic of a woman’s right to contraception access, the conservative Justice Alito was given over a minute and a half longer than the longest questioning period by a justice appointed by a Democratic president — or any of the female justices.

There were also notable differences in whom the chief justice interrupted or cut off. The chief justice ended questioning periods nearly 160 times, typically by interrupting an advocate or concluding after an advocate’s response to another justice’s question. But on 11 occasions, the chief justice interrupted or cut off another justice. Every one of those 11 occasions involved justices who were appointed by Democratic presidents, and nine of the 11 involved female justices.

That is not because the female or Democratic-appointed justices were taking more time. The chief justice interrupted Justice Ginsburg and Justice Stephen Breyer even though they used less time than a majority of their colleagues, including Justice Gorsuch and Justice Kavanaugh, whom the chief justice never once interrupted.

Justice Ginsburg, a senior member of the court, participated from her hospital bed on some days. But the chief justice did not lend her great deference, ending more of her questioning periods than that of the newest member, Justice Kavanaugh, even though she spoke, on average, over 10 seconds less per questioning period than he did. Ten seconds may not sound like much, but is more than enough time to get out an additional question or at least a remark about how an advocate’s claims are unpersuasive.

Similarly, the chief justice ended many more of Justice Sotomayor’s questioning periods than Justice Gorsuch’s, even though they spoke, on average, the same amount of time per questioning period and even though he had two of the six longest questioning periods and she had none.

To be fair to the chief justice, this was an unusual arrangement, and at the same time that he was supposed to be keeping the justices to their time limits, he was also participating in the arguments as a questioner and as a decision maker. By any standard, he had a difficult job.

Still, his uneven application of the rules was not random. It was gendered and ideological, as interruptions have been in previous courts. But it is possible that having these new demands, he could not or did not devote sufficient attention to checking his own biases.

The justices promise to be neutral, but the fact is that they are human with real human biases that affect their decisions. Oral arguments are just another occasion where that comes through.

It’s possible that with experience, Chief Justice Roberts will take corrective steps. If the court continues to have arguments on the phone into the next term, someone else, such as the clerk of the court or the counselor to the chief justice, could keep time and end questioning periods rather than the chief justice.

And if the court reverts to its usual argument, Chief Justice Roberts might want to keep a running tally of who interrupts and whom he allows to speak. Because as much as we may want the chief justice to be a neutral umpire, that is not what we have seen this month at the Supreme Court.