Below is some of the actual transcript from oral arguments in United States v. Texas, the second case argued at the Supreme Court on Monday about whether Texas can create a law that nullifies Roe v. Wade and also insist that nobody anywhere can challenge it:
GENERAL PRELOGAR: While I certainly acknowledge, Justice Alito, that an injunction that would bind state court judges is extremely rare, it’s not unheard of, and I think, in the unprecedented facts of this case, it’s appropriate relief. And—
JUSTICE ALITO: Well, judges have been enjoined—
GENERAL PRELOGAR: —and the reason for that is—
JUSTICE ALITO: —let me just interrupt you—
“General Prelogar,” to clarify, is Elizabeth Prelogar, the solicitor general of the United States, the second woman ever to hold that post. Monday was her first day on the job.
Here’s a bit more:
GENERAL PRELOGAR: This law is different because it has taken the ordinary state court mechanism that might be an appropriate way to vindicate the rights, whatever they are, and it’s purposefully sought to—
JUSTICE GORSUCH: But you’d agree—
GENERAL PRELOGAR: —obstruct that.
JUSTICE GORSUCH: —you’d agree that tort laws for defamation have a chilling effect?
GENERAL PRELOGAR: Yes, but they haven’t chilled speech—
JUSTICE GORSUCH: And you’d agree that
GENERAL PRELOGAR: —out of existence.
JUSTICE GORSUCH: —that gun control laws also have a chilling effect?
GENERAL PRELOGAR: They can, but not
JUSTICE GORSUCH: And—and you’d agree—
GENERAL PRELOGAR: —in the same way that S.B. 8 operates.
JUSTICE GORSUCH: —as well that laws restricting the exercise of religion can have a chilling effect?
GENERAL PRELOGAR: I’m not denying Justice Gorsuch, that—that those kinds of laws can have some measure of chilling effect on the margins, but they look nothing like this law.
Monday at the Supreme Court, the solicitor general of the United States was unable to complete a sentence.
This is hardly new. In their 2017 study “Justice Interrupted: The Effect of Gender, Ideology, and Seniority at Supreme Court Arguments,” Tonja Jacobi and Dylan Schweers crunched the data to show that female justices may be three times more likely to be interrupted than male justices, and also that conservative justices were more likely to interrupt than liberal justices. When the court went to online arguments at the start of COVID, it got much worse. Court watchers quickly began to notice that the female justices were being cut off far more frequently than the men. Leah Litman, writing in Slate in the summer of 2020, looked at the admittedly smaller data set around new telephonic arguments and found the pattern replicated. She found, that “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.” She also discovered that “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.”
Worse, possibly, Litman found that of the 11 times Chief Justice John Roberts interrupted a colleague to cut short their questions, “all 11 interruptions were of his more liberal colleagues. And nine of these interruptions were of women.” And this wasn’t because the women were using up more time. Litman found the opposite: The men were apt to talk at greater length and also to remain uninterrupted.
So this fall, as the court partially reopened for public arguments, the format for oral arguments changed yet again. The new format—each justice, once an attorney’s time has expired, can ask specific questions uninterrupted and in order of seniority—had been crafted, according to Justice Sonia Sotomayor, who spoke at an event at New York University School of Law two weeks ago, in part in response to the ongoing criticism about women being routinely cut off or talked over.
So at the very least, the justices may finally be learning, or at least are being forcibly trained, to be more respectful toward one another. But apparently the introduction of a female solicitor general (Prelogar was confirmed last week) into the mix was simply too much.
Prelogar was on hand to defend the Justice Department’s lawsuit against Texas. The law that she’s challenging has made abortion after six weeks functionally impossible for virtually everyone in that state. The far-right wing of the court appeared on Monday to not only love the Texas ban but also have no problem living comfortably with the fiction that it is “genius” as opposed to what it actually is, which is nihilist. And—perhaps completely coincidentally—some of that same far-right flank went on to evince almost stunning disregard for the female advocate. Others will someday run the actual numbers on how many times Prelogar was interrupted and condescended to and lectured and directed to just answer the question, while being prevented from answering the question. Meanwhile, Texas’ solicitor general, Judd E. Stone II and Jonathan Mitchell, the architect of the Texas law (and the man who famously wrote that “Contraception and sterilization are simply devices that enable women who do not wish to become pregnant—but who are unwilling to refrain from sexual intercourse—to engage in sexual intercourse while greatly reducing their risk of pregnancy”), were allowed to expound at great length without interruption. At one point, Stone called an abortion after six weeks a “late-term abortion” because hey, why not? And at several points, Gorsuch referred to Prelogar as “counsel” as opposed to “general”—the honorific to which she is entitled.
Here’s some more:
GENERAL PRELOGAR: Just to be clear—and I—I’m sorry if I wasn’t clear about this before—we understand the injunction only to bind those individuals who choose to file suit question.
JUSTICE GORSUCH: Who bring suit.
GENERAL PRELOGAR: And so that—
JUSTICE GORSUCH: Yeah, that’s my question
GENERAL PRELOGAR: at that point, they would be identifiable
JUSTICE GORSUCH: And I’m asking you, counsel, are you aware of any other example of such an injunction?
GENERAL PRELOGAR: With that specific term, I—I can’t cite one to you. Again—
JUSTICE GORSUCH: Not in the—
GENERAL PRELOGAR: —that’s because this—
JUSTICE GORSUCH: —history of the United States, you can’t—you can’t identify one for us right?
GENERAL PRELOGAR: In the history of the United States, no state has done what Texas has done here.
Sure, sure. Each of these tiny slights and affronts can be chalked up to the usual cluelessness and fractiousness of any given oral argument. But it never ceases to astonish that years after it’s been documented in political science, called out in the press, and theoretically remediated in court procedures, the object blindness to how obnoxiously the court still treats women advocates still pervades.
Prelogar was, to her credit, unfazed by the endless interruptions and the hectoring. Her case was simple, as she explained: “Texas designed S.B. 8 to thwart the supremacy of federal law in open defiance of our constitutional structure. … States are free to ask this court to reconsider its constitutional precedents, but they are not free to place themselves above this court, nullify the court’s decisions in their borders, and block the judicial review necessary to vindicate federal rights.” She proved, yet again, that in the face of unmitigated rudeness, logic and truth can prevail, and it can do so while dancing backward and in heels.
Over and above everything else, it was plain again at arguments over Texas’ efforts to immunize itself from suit over S.B. 8 that the technical intricacies of Ex Parte Young and the various indignities suffered by state clerks, judges, and other Texas officials subject to suit (all referenced today as “he” by my count) are far more pressing to supporters of the law than the actual pregnancies being carried to term against the will of pregnant people. It’s unclear what will happen with this case now that the justices are being forced to rule on its merits in the light of day. But in word and in deed, some of the justices are living proof that the actual human woman standing before them and tasked with articulating and explaining those interests in court is just as unworthy of their respect or regard as the women she is seeking to help.
