The headline of this post would be an alternative—and, as I will discuss, perhaps a more reliable—takeaway from a study by law professor Leah Litman of the Supreme Court’s recent telephonic arguments, but it’s obviously not as attention-grabbing as the National Law Journal’s story titled “Female Justices Were Cut Off More Than Colleagues During Phone Arguments, Study Says.”
Litman reports that over the course of the ten telephonic oral arguments the Chief Justice “ended questioning periods a total of 158 times, either by interrupting someone or by saying ‘thank you’ after an advocate paused.” By her count, the Chief Justice interrupted other justices only 11 times, and nine of these 11 interruptions were of female justices. She finds that an unusual disparity compared to who had the longest “questioning periods.”
It seems to me, though, that Litman is using a dubious benchmark. You’d expect the Chief Justice’s interruptions to correlate with how often a justice begins asking a question after the justice’s allotted question time has expired. That is not the same metric as what Litman calls a justice’s “questioning period”—which she defines as “the amount of time each Justice received to ask questions and have them answered.” (Emphasis added.)
To illustrate the difference: Assume that each justice is allotted three minutes for each round of questioning. (As I understand it, the actual allotment varied by case depending on the number of advocates.) Justice X completes a question with ten seconds left in the round, and the advocate proceeds to take forty seconds to answer it. Justice Y tries to ask a question after the three minutes have expired, and the Chief Justice interrupts Justice Y. Justice X would have a longer “questioning period,” but of course there would have been no occasion for the Chief to interrupt Justice X.
It might well be that some justices did a better job than others of keeping track of their own time and were adept at getting questions in under the wire. If so, there could well be a large disparity between average questioning period (or number of long questioning periods) and number of times interrupted by the Chief. It’s also possible, of course, that the metric I propose would yield the same disparity that Litman found.
On my alternative headline: Litman reports that Gorsuch and Sotomayor tied for first in “average time allowed to speak per questioning period they used,” with Kagan in fourth place and Ginsburg in seventh. The average time allowed per questioning period for the female justices was 189 seconds, versus 183 seconds for the male justices. I’m not going to maintain that this difference is statistically significant (though Litman herself argues that “small differences matter”), but it does cut rather sharply against a general claim that the Chief Justice was unfair to the female justices.