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April 17 2017

"Interrupting" Female Supreme Court Justices: "Mansplaining" or Actually a Good Idea?

by Charlotte Allen

 

So, which is it?

Tonja Jacobi and Dylan Schweers, writing in the Washington Post, April 11, 2017:

Judge Neil M. Gorsuch is set to become the newest member of the Supreme Court on Wednesday. That means that the most junior justice on the court will be a man, in contrast with the past nine years, when Justice Sonia Sotomayor and then Justice Elena Kagan each held that title. During that time, the two female justices were interrupted during oral arguments far more often than the other justices on the court. Some might say that is because they were junior; we predict that the soon-to-be Justice Gorsuch will nevertheless be interrupted far less than those two female justices.

Our new empirical study, forthcoming in the Virginia Law Review, shows that the male justices interrupt the female justices approximately three times as often as they interrupt each other.

Dalia Lithwick, writing in Slate, March 2, 2016:

It felt as if, for the first time in history, the gender playing field at the high court was finally leveled, and as a consequence the court’s female justices were emboldened to just ignore the rules. Time limits were flouted to such a degree that Chief Justice John Roberts pretty much gave up enforcing them. I counted two instances in which Roberts tried to get advocates to wrap up as Justices Ruth Bader Ginsburg and Sonia Sotomayor simply blew past him with more questions. There was something wonderful and symbolic about Roberts losing almost complete control over the court’s indignant women, who are just not inclined to play nice anymore.

So, on the one hand, it’s The horror! The horror! when a male Supreme Court justice “interrupts” a female Supreme Court justice (although, since the Jacobi and Schweers study was based on transcriptions, not recordings of the oral arguments in question, we don’t have a complete context for the alleged “interruptions” in question).

On the other hand, it’s “wonderful and symbolic” when “indignant” female Supreme Court justices “ignore the rules” and flout “time limits” time limits for them to talk during said oral arguments.

Furthermore, back in 2009, when Sotomayor, a federal appeals judge nominated by then-President Barack Obama, was up for Senate confirmation, the New Republic’s Jeffrey Rosen noted that several of her law clerks and some liberal legal scholars had dubbed her a loudmouth who enjoyed bullying lawyers in oral argument. Here’s the Weekly Standard’s excerpt from Rosen’s report:

I was satisfied that my sources's concerns were widely shared when I read Sotomayor's entry in the Almanac of the Federal Judiciary, which includes the rating of judges based on the collective opinions of the lawyers who work with them. Usually lawyers provide fairly positive comments. That's what makes the discussion of Sotomayor's temperament so striking. Here it is:

Sotomayor can be tough on lawyers, according to those interviewed. "She is a terror on the bench." "She is very outspoken." "She can be difficult." "She is temperamental and excitable. She seems angry." "She is overly aggressive--not very judicial. She does not have a very good temperament." "She abuses lawyers." "She really lacks judicial temperament. She behaves in an out of control manner. She makes inappropriate outbursts." "She is nasty to lawyers. She doesn't understand their role in the system--as adversaries who have to argue one side or the other. She will attack lawyers for making an argument she does not like."

So maybe some of those “interruptions” on the part of the male Supreme Court justices aren’t a bad idea. Isn’t “order in the court” supposed to be the rule?

 

Independent Women's Forum is an educational 501(c)(3) dedicated to developing and advancing policies that aren’t just well intended, but actually enhance people’s freedom, choices, and opportunities. IWF is the sister organization of the Independent Women’s Voice.​
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