Women are cut off—even at the Supreme Court.

By Claire Zillman
April 6, 2017

Not even Supreme Court justices are safe from the “manterruption” pandemic.

A new study of oral arguments from researchers at Northwestern University found that as more women join the Supreme Court—there are three now, the most ever—”the reaction of the male justices and the male [lawyers] has been to increase their interruptions of the female justices.”

Interruptions are often regarded as an assertion of power through verbal dominance, according to the study’s authors Tonja Jacobi, a professor at Northwestern Pritzker School of Law, and Dylan Schweers, a J.D. candidate at the school. If that’s the case, then women in positions of power should be interrupted less. Yet at the pinnacle of legal power, female Supreme Court justices “are just like other women,” they write, “talked over by their male colleagues.”

Jacobi and Schweers explained their findings in a post for SCOTUSblog:

The 2015 term marked the apex of inter-justice interruptions, but it was not an outlier. In the last 12 years, when women made up on average 24% of the bench, 32% of interruptions were of the female justices, yet only 4% of interruptions were by the female justices. That means each woman was interrupted on average three times more often than each of her male colleagues.

This trend matters a great deal since oral arguments factor significantly into case outcomes. They focus the judges’ attention, aid in their information gathering, and provide a forum to persuade their colleagues. “When a justice is interrupted, her point is left unaddressed, and her ability to influence the outcome of a case or the framing of another justice’s reasoning is undermined,” the authors write.

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But within the stream of ‘manterruptions,’ Jacobi and Schweers found another fascinating pattern: As women spent more time on the court they cut back on a tendency to pose questions politely with prefatory words and phrases like “sorry,” “may I ask,” “can I ask,” “excuse me,” or by addressing the advocate by name. That kind of language gives other justices an opportunity to jump in. Essentially, with experience, female justices learned to talk more like men.

For instance, in the 2002 oral argument for Dole Food Company vs. Patrickson, Ginsburg was cut off by Justice Anthony Kennedy after she started her statement by addressing a lawyer arguing the case.

Ruth Bader Ginsburg: Mr. Paden, because–
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…

Like retired Justice Sandra Day O’Connor, “Ginsburg appears to transition to a more aggressive style of questioning in the 2015 Term, and she is not interrupted nearly as frequently,” according to the authors. They concluded:

Reducing use of polite phrasing does not entirely prevent interruptions: Women continue to be interrupted more than men, and [Justice Sonia] Sotomayor is interrupted despite minimal use of this language. But both O’Connor and Ginsburg were interrupted less over time, even as interruptions increased. This suggests that [Justice Elena] Kagan would be wise to continue absorbing the lesson that her more senior female colleagues have learned.

But women justices should not be expected to fix the “manterruption” problem on their own. Chief Justice John Roberts, Jacobi and Schweers argue, could play a larger role as a referee. Or male justices could simply learn to let their female colleagues speak.

 

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