Abstract

Excerpted From: Christina L. Boyd and Sidney E. Shank, How Gender-biased Oral Argument Interruptions Opened the Door for Chief Justice Roberts to Be ATransformational Leader, 103 Boston University Law Review 1805 (October 2023) (71 Footnotes) (Full Document)

In a 2021 NYU Law School conversation with Justice Sonia Sotomayor, the Justice was asked whether she observed higher levels of interruptions of female Justices, relative to their male colleagues, during the Supreme Court's oral arguments. Justice Sotomayor responded in the affirmative:

Did I notice it as a dynamic? Without question ... but I don't know of a woman who hasn't. Meaning, regrettably, that is a dynamic that exists not just on the court but in our society in general. Most of the time, women say things, and they're not heard in the same way [as] men [who] might say the identical thing.

Empirical evidence confirms that Sotomayor's observations matched reality, with a 2017 study indicating “women on the Supreme Court are interrupted at a markedly higher rate during oral arguments than men” and that “both male Justices and male advocates interrupt women more frequently than they interrupt other men.” Following the publication of these results, the Justices of the Supreme Court--and especially John Roberts as the Court's Chief Justice and leader--apparently took note. As Sotomayor put it,

In the case of that study, I think it had an enormous impact. I know that after reports of that finding came out that our chief judge was much more sensitive to ... ensuring that people got back to the judge who was interrupted.

Until now, however, we have lacked empirical confirmation on whether Sotomayor's assessment of the Chief--that Roberts' efforts to stem gendered interruptions during oral arguments worked--were supported in oral argument data. With their Article Supreme Court Interruptions and Interventions: The Changing Role of the Chief Justice, Tonja Jacobi and Matthew Sag provide analysis on this very point, indicating that Sotomayor's anecdotal observations are indeed empirically supported.

In Supreme Court Interruptions and Interventions, Jacobi and Sag show that Chief Justice Roberts increased his interventions during oral arguments to help his colleagues finish their questions. The Jacobi and Sag study also reveals compelling evidence that the Chief's actions as “referee,” perhaps paired with te institutional changes he's made to reduce the “free-for-all” nature of oral arguments, have successfully stopped female Justices from receiving the lion's share of interruptions from fellow Justices. While there is room for further empirical inquiry into the nature and extent of Roberts' effect on altering gendered interruptions--ensuring that it was Roberts' efforts and not other factors like case salience, Justice ideology, the changing composition of the Court across time, or the behavior of the advocates during oral arguments that caused the observed changes--the Jacobi and Sag piece provides a powerful first examination in this context. Supreme Court Interruptions and Interventions provides an important finding that is likely to be encouraging to the Chief Justice, his colleagues, and interested bystanders concerned about lingering gender bias in society, including at our nation's High Court.

With their study, Jacobi and Sag have landed on a very important and effective moment in Chief Justice Roberts' leadership on the Court. Indeed, the Chief's leadership in this context is worthy of additional attention. In this Article, we do exactly that. In Part I, we examine the leadership role of the Supreme Court's Chief Justice. This examination also provides us an opportunity to explore the main theories of leadership--transactional and transformational leadership--and begin to see how these theories may apply to Roberts. In Part II, we review the biased interruption pattern present during the Supreme Court's oral arguments and provide a broader argument about why this pattern is simultaneously devastating and critical to study. Bolstered by Jacobi and Sag's findings, we discuss in Part III how this interruption pattern may have presented Chief Justice Roberts an opportunity, that he then seized, to be a transformational leader. As we conclude, we return to the importance of the Supreme Court Interruptions and Interventions and its broader implications for highlighting the Chief's leadership powers. In doing so, we briefly explore whether this type of leadership, if transported out, might similarly reduce gendered interruption patterns in other legal-political institutions. To do this, we take a deeper dive into one such context where gendered interruptions have also been observed: U.S. Supreme Court confirmation hearings before the Senate Judiciary Committee.

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As Jacobi and Sag show, Chief Justice Roberts' interventions have helped stem the Court's gendered-interruptions imbalance during oral arguments. We argue here that Roberts seized this moment to act as a transformational leader on the Court. Roberts moved beyond the traditional transactional leadership role of Chiefs and instead used his own actions and gained buy-in from his colleagues for transforming the Court's interruptions climate.

Can Roberts' leadership model be transplanted to other political and legal institutions where gendered interruption patterns also persist? Just as has been observed during Supreme Court oral arguments, recent research examining Senate Judiciary Committee confirmation hearings for Supreme Court nominees from 1939 to 2022 has also found that female nominees face disproportionately higher rates of interruptions from male senators during their confirmation hearings, relative to male nominees.

While some senators are likely aware of their interruption tendencies toward female nominees, other ingredients needed to alter the interruption pattern are missing from the Senate's Judiciary Committee. For one, there is no singular, long-term leader for the Senate Judiciary Committee that is akin to Chief Justice Roberts. The Committee chair rotates when partisan control of the Senate shifts, and it can also change from Congress to Congress even when there is no change in party control. Relatedly, there are also significant differences in the institutional political climate between the Supreme Court and the Senate that likely affect members' willingness to follow their leadership's guidance. As Christina Boyd, Paul Collins, and Lori Ringhand argue, “[w]hile justices are ideologically diverse and sometimes issue starkly divided opinions and scathing dissents, they also have relative independence from daily politics. By contrast, senators have institutional incentives to regularly score political points, gain media attention, and find ways to satisfy the partisan inclinations of their voters.” As a result of these climate differences, senators are likely to be much less willing to follow their leadership's encouragement to reduce interruptions of female participants.

While scholarship has yet to empirically document gender patterns in interruptions in other court oral argument settings (like federal courts of appeals or state supreme courts), we suspect that should inequities exist in those settings, it will likely be difficult to achieve changes like those ushered in by Chief Justice Roberts at the Supreme Court. This is particularly true for courts like the federal courts of appeals, where the court's chief judge rotates over time based on seniority and judges hear cases in panels rather than en banc. Relative to the U.S. Supreme Court, these courts lack intracourt stability in the daily, repeat-player collegiality between judges themselves and between judges and their chief judge. As a result, scholars have found that courts of appeals' “chief judges exercise little influence over the decisional process within individual panels.” These factors make it unlikely that a Roberts-style transformational leadership scheme could be adopted. For state supreme courts, while there is more evidence of chief Justices' impact on their courts' collegiality and decision making, wide variance in selection and term length of judges and the role and tenure of their Chief Justice mean it may be difficult to export the Chief's solution to those courts as well.

University of Georgia; Professor of Political Science; Thomas P. and M. Jean Lauth Public Affairs Professor; Courtesy Appointment, School of Law; Affiliated Faculty, Criminal Justice Studies Program.

University of Georgia School of Public and International Affairs, Ph.D. student.