The numbers do not lie: Women have long been underrepresented on the United States Supreme Court. In the court’s 228-year history, only four of the 112 justices have been female. Sandra Day O’Connor became the first female justice in 1981, almost two centuries after the court’s creation, decades after ratification of the 19th Amendment, and years after landmark Supreme Court decisions on women’s rights. Now, with three female justices on the bench, gender equality on the court seems within reach. But our new research on interruptions among justices during Supreme Court oral arguments indicates that women still do not have an equal opportunity to be heard in the highest court in the land.
Psychological and linguistic research has long shown that gender plays a significant role in interruptions. In groups or one-on-one conversations, in social or professional contexts, women are disproportionately interrupted by both men and by women. And, no, this is not because women are more talkative (a common misconception): Men actually talk more than women. Instead, interruptions are commonly interpreted as attempts by speakers to maximize their power through verbal dominance. Men interrupt women more because our society has historically accepted male dominance. The most recent election arguably confirmed this. There are few more powerful positions than being a Supreme Court justice, yet the female justices are just like other women: talked over by their male colleagues.
Oral arguments at the Supreme Court are the primary interactions among the notoriously cloistered justices. Advocates have only half an hour per side to make their case to the justices. The justices pepper the advocates with questions, gathering information to aid their decisions on the disputes, test out ideas, and attempt to influence one another. Scholars have shown that oral arguments shape case outcomes, so any systematic interference with the female justices’ ability to fully participate will limit their substantive power on the court.
We analyzed interruptions among the justices, using transcripts of the oral arguments from the current era (the years 2004-2015 of Chief Justice John Roberts’ court), as well as earlier years when there were only one and two women on the court — the 1990 and 2002 terms, respectively. In the past 12 years, when women made up on average 24 percent of the bench, 32 percent of interruptions were of the female justices, yet only 4 percent of interruptions were by the female justices. Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan were each interrupted more than 100 times by their colleagues. Overall, female justices were three times more likely to be interrupted than their male colleagues. The same pattern held in earlier years: Even though there were far fewer interruptions back in 1990 and 2002, justices O’Connor and Ginsburg were interrupted just under three times more often than the average male justice.
So what exactly do these interruptions look like? Here is an example from the 2015 term, Bank Markazi v. Peterson, a case brought against Iran’s central bank by victims of terrorist attacks:
Justice Ginsburg: Is there — are there any —
Justice Anthony M Kennedy: Well, suppose there were three unrelated cases.
Jeffrey A Lamken [on behalf of Bank Markazi]: Pardon?
Justice Kennedy: Suppose there were three unrelated cases. Would the statute pass?
Lamken: Yes. So if Congress had identified three unrelated cases and — and said that for these unrelated cases —
Justice Ginsburg began asking her question first, but Justice Kennedy interrupted, and the advocate answered his question. A moment later, Justice Kennedy realized what had happened:
Justice Kennedy: I — I inadvertently interrupted Justice Ginsburg, but in the — in the 19 cases here, you don’t find that principle?
Lamken: No, Your Honor. There aren’t 19 cases here.
Justice Kennedy acknowledged the interruption, yet instead of giving Justice Ginsburg the floor, he continued with another question of his own. This is just one example of the numerous times in which male justices interrupt female justices.
Male justices are not the only culprits. Despite strict rules that mandate advocates stop talking immediately when a justice begins speaking, the male advocates interrupt the female justices at extraordinary rates. Male advocates account for approximately 10 percent of all interruptions; female advocates account for approximately 0 percent. So the pattern we observe of female justices being systematically interrupted is not simply a product of an idiosyncratic handful of male justices — the same dominant behavior is displayed among the hundreds of advocates appearing before the court.