After mansplaining, the next worse thing for a woman is to be repeatedly interrupted by a man. Especially if you are a female justice on the U.S. Supreme Court.
But female Supreme Court justices are being interrupted by the male justices at approximately three times the rate of their male colleagues during oral arguments, according to a new study to be published in the Virginia Law Review this fall.
The most-interrupted female justice is 84-year-old Ruth Bader Ginsberg.
“Ginsburg is interrupted six times as often” as her male colleagues Justices Samuel Alito and Chief Justice John Roberts, and Justice Sonia Sotomayor is “interrupted more than three times as often,” the study found. Justice Elena Kagan is interrupted more than twice as often as Alito and Roberts.
Male justices are not the only ones interrupting the women justices.
“Our findings clearly establish that women on the Supreme Court . . . are interrupted at a markedly higher rate” by “both male justices and male advocates,” Northwestern Law School professor Tonja Jacobi said in the report she co-authored with Northwestern Law School student Dylan Schweers.
The court has a rule against interrupting justices, but Chief Justice Roberts does not routinely enforce it when the female justices are interrupted, the study says.
The interruptions have been increasing even though — or perhaps because — the number of women on the court has increased to three in the years after Justice Sandra Day O’Connor was appointed as the first woman on the court by President Ronald Reagan in 1981.
“Indeed, the more women on the Court, the more they are interrupted,” the study says. “This suggests that rather than getting acclimated to having to share the Bench with women, men may be becoming more hostile to the incursion of women into their traditional domain.”
Jacobi and Schweers say that this is “consistent with social science literature showing that traditional elites, such as legislators, feel threatened by the entry of nontraditional members into their realm and act more aggressively to the interlopers in an attempt to protect their privilege.”
The male-female interruptions are not just bad manners; they can skew the outcome of court decisions toward a conservative outcome, the report argued.
“When a Justice is interrupted during her questioning, her point is often left unaddressed,” Jacobi and Schweers contend. “Without being able to ask her question, and without receiving an answer, the interruptee may be inhibited from using this point to persuade her colleagues.”
Because the women on the court are liberal — and Sotomayor and Kagan are junior justices — their interruptions “could ultimately lead to more conservative coalitions, and potentially, more conservative decisions, and reduction in the influence of women and younger Justices,” the study says.
Jacobi and Schweers recommend that “all Justices, and the advocates, chang their gendered behavior.”
The study also urges Chief Justice Roberts to become more “assertive” to make sure the interruption does not prevent a female justice from having her question answered. The justice could do this by “enforce[ing]the existing rule that prohibits advocates from interrupting the Justices, as this would set an example for the advocates, the public who watches or listens to the argument, and quite possibly even the other Justices.”
The study provided several examples of the interruptions.
In two examples, Justice Ginsberg was interrupted by a male justice. In 2002, in State Farm Mutual Automobile Insurance Company v. Campbell:
Lawyer Laurence H. Tribe: . . . Now, the Double Jeopardy Clause
Justice Ruth Bader Ginsburg: Mr. Tribe, I thought you answered
Justice John Paul Stevens: –What’s the authority for that proposition?
Laurence H. Tribe: –I would . . . I just made it up.
In 2002, in Dole Food Company vs. Patrickson:
Ruth Bader Ginsburg: Mr. Paden, because–
Justice Anthony M. Kennedy: –I have one . . . one small procedural question. Why is Dole properly before us? I want to make you feel welcome here, but–
Peter R. Paden: I do, Your Honor.
In 2013, during oral argument for the race in college admissions case, Fisher v. the University of Texas, Justice Sotomayor was repeatedly interrupted by attorney Bert W. Rein without any enforcement of the non-interruption rules by Justice Roberts.
Sonia Sotomayor: I — I — I — what you’re saying, basically, is, is this is what the Fifth Circuit concluded and which the school basically agrees, okay? If you don’t consider race, then holistic percentage, whatever it is, is going to be virtually all white.
Bert W. Rein: And that is incorrect.
Sonia Sotomayor: All white.
Bert W. Rein: And that is an assumption —
Sonia Sotomayor: And to say — no —
Bert W. Rein: –that has no basis in this record.
Sonia Sotomayor: Oh, but there is —
Bert W. Rein: It’s a stereotypical —
Sonia Sotomayor: No, it’s not —
Bert W. Rein: — assumption. That is what it is.
Sonia Sotomayor: It’s not, because the reality —
Bert W. Rein: With all deference —
Sonia Sotomayor: — that Justice —
John G. Roberts, Jr.: Mr. Rein –
Sonia Sotomayor: — Alito wants to rely on. Let me finish my point. He’s right. For their educational needs, there are competing criteria.