Equal justice under law is engraved on the front of the United States Supreme Court building. The court and our country have never quite lived up to that ideal, and the Supreme Court’s unprecedented telephonic arguments were no exception.
Typically, Supreme Court arguments are a free-for-all where the justices speak as they please, with the chief justice moderating when multiple justices try to speak at the same time. But for its first-ever telephonic arguments, the court adopted a format where each justice was allowed to question each of the advocates in order of seniority.
That system forced Chief Justice John Roberts to do more than play traffic cop when multiple justices tried to talk. In the new system, the chief justice had to ensure each justice’s compliance with the allotted time for questioning each of the advocates. The court did not release any more guidelines about the telephonic arguments, but the chief may have set an amount of time for each justice to question a given advocate and planned to intervene when a justice got close to or exceeded that time. (Each side gets 30 minutes to argue, but the amount of time each advocate has depends on whether the argument is divided between more than two advocates.)
In the path-marking 2017 study “Justice Interrupted: The Effect of Gender, Ideology, and Seniority at Supreme Court Arguments,” Tonja Jacobi and Dylan Schweers showed that female justices may be three times more likely to be interrupted than male justices, and that conservative justices were more likely to interrupt than liberal justices. I decided to try to find out whether the same was true for telephonic arguments. I also sought to examine how well the chief justice did at keeping the different justices on schedule and ensuring that each justice had roughly equal opportunities to speak. I listened to all of the arguments and marked when the chief justice or a questioning justice ended the time for a justice’s questioning, and when the chief justice signaled for another justice to start their questioning.
The data available for telephonic arguments was necessarily more limited than the data in Jacobi and Schweers’ study. Jacobi and Schweers analyzed decades of oral arguments, whereas the court has only held 10 telephonic arguments over a two-week period.
Although I think that the chief justice tried and succeeded, in some respects, at being evenhanded, he fell well short in others. Several of these shortcomings were consistent with what Jacobi and Schweers observed in their study of the court’s regular oral arguments.
There were striking disparities evident from the telephonic arguments. One disparity is the justices who had the longest and shortest questioning periods. The three longest questioning periods were all by male justices, and all by conservative justices—two from Justice Samuel Alito and one from Justice Neil Gorsuch. The three shortest questioning periods that were ended by the chief justice (rather than by the questioning justice concluding their inquiry) were all by female justices—two from Justice Ruth Bader Ginsburg and one from Justice Elena Kagan.
Then there were the interruptions. The chief justice had to end most of the individual questioning periods rather than wait for the questioning justices to conclude them in a timely way. Over the 10 arguments, the chief justice ended 158 total questioning periods. Most of the time he did so by interrupting an advocate or saying “thank you” after an advocate paused or concluded their remarks. But occasionally he interrupted one of his colleagues, either as they were asking or beginning to ask a question or before an advocate had to respond to their question. Of the 11 times the chief justice interrupted a colleague, all 11 interruptions were of his more liberal colleagues. And nine of these interruptions were of women.
These interruptions were not more common because the liberal justices just happened to be more long-winded. Again, the three longest total questioning periods were all by male, conservative justices—one by Alito and two by Justice Brett Kavanaugh. While liberal justices had six of the 13 longest total questioning periods in a given argument, their total questioning times were far shorter than that of their more conservative colleagues. Alito’s longest questioning time was nearly a minute longer than the longest total questioning time that a liberal justice received (Justice Sonia Sotomayor in Mazars) and nearly a minute and a half longer than the second-longest questioning time that a liberal justice received (Kagan in Our Lady). Kavanaugh’s longest questioning times were over a minute longer than Kagan’s longest questioning time, and 30 seconds longer than Sotomayor’s.
Despite these disparities, I think the chief justice tried to be evenhanded and succeeded in being evenhanded on some metrics. The justices who had the longest average questioning periods (per questioning periods they used) were Sotomayor and Gorsuch, who represent different sides of the court. And the chief justice did give additional time to some of the justices who followed Alito’s often lengthy questioning periods—though not nearly as much as Alito received. The May sitting was also a new format that all of the different justices were learning, and the chief was participating in the arguments at the same time that he was attempting to moderate them.
Nonetheless, my study suggests there is room for improvement if the court sticks with telephonic arguments, particularly in this format, for its next term. The disparities among the different justices matter. What might seem like small differences—say, 20 seconds more per questioning period—matter. They can be the difference between getting in an additional question or a rejoinder to something an advocate says. And the longer that a justice has to talk, the more opportunities they have to persuade their colleagues, including by showing them the weaknesses in a particular side’s position. At his confirmation hearings, the chief justice likened the role of a judge to that of an umpire. But umpires need to be willing to enforce the rules against everyone, even Alito.