The Harvard Business Review recently released the results of an enlightening new study about the speech patterns during SCOTUS oral arguments.
According to the article, a new empirical study shows that the male justices interrupt the female justices approximately three times as often as they interrupt each other during oral arguments.
HBR examined the transcripts of 15 years of Supreme Court oral arguments, finding that women do not have an equal opportunity to be heard on the highest court in the land. In fact, as more women join the court, the reaction of the male justices has been to increase their interruptions of the female justices. Many male justices are now interrupting female justices at double-digit rates per term, but the reverse is almost never true. In the last 12 years, during which women made up, on average, 24% of the bench, 32% of interruptions were of the female justices, but only 4% were by the female justices.
And there is a consistently gendered pattern: In 1990, with one woman on the bench (former Justice Sandra Day O’Connor), 35.7% of interruptions were directed at her; in 2002, 45.3% were directed at the two female justices (O’Connor and Ruth Bader Ginsburg); in 2015, 65.9% of all interruptions on the court were directed at the three female justices on the bench (Ginsburg, Sonia Sotomayor, and Elena Kagan). With more women on the court, the situation only seems to be getting worse.
Not only do the fellow male justices interrupt the female justices, so too do the male advocates on the other side of the bench. Despite strict rules mandating that advocates stop talking immediately when a justice begins speaking, interruptions by male advocates account for approximately 10% of all interruptions that occur in court. In contrast, interruptions by female advocates account for approximately 0%.
While the female justices are being interrupted at far higher rates, at least they are learning to stop using polite prefatory words. Early in their tenure, female justices tend to frame questions politely, using prefatory words such as “May I ask,” “Can I ask,” “Excuse me,” or the advocate’s name.
HBR ultimately found that women gradually learn to set aside such politeness. All four of the female justices have reduced their tendency to use this polite phrasing. Justice Sotomayor adjusted within just a few months. Justices O’Connor and Ginsburg gradually became less and less polite over decades on the court, eventually using the polite phrases approximately one-third as much as they did initially. Justice Kagan is still learning: She uses polite language more than twice as often as the average man, although half as often as she did in 2010.
Not surprisingly, HBR did not see a similar trend with the men, because male justices rarely use these polite speech patterns, even when they first enter the court. It is the women who adapt their speech patterns to match those of the men.
If it’s this bad for arguably some of the most powerful women in the world, imagine what it’s like for other women in the legal profession. We all need to be aware of this issue and do a better job of listening.