- “Liberal” Justices at the time of the study: John Paul Stevens, Ruth Bader Ginsburg, David Souter and Stephen Breyer
- “Conservative” Justices: Antonin Scalia, Samuel Alito, Anthony Kennedy and John Roberts.
- Clarence Thomas was not included in the study since he never spoke during any case analyzed.
Supreme Court Justices may not realize it, but they are more or less likely to pepper an attorney with questions based on the gender of the attorney, according a new BYU study.
An analysis of Supreme Court transcripts by two BYU researchers now gives Supreme Court-bound legal teams an extra bit of valuable data as they prep to face the Justices during oral arguments.
BYU Communications professor Ed Carter and then-BYU graduate student James Phillips found that “liberal” Supreme Court Justices tend to ask more questions and do less talking when interacting with female attorneys while “conservative” Justices tend to do just the opposite with women lawyers. (See sidebar for judicial leanings)
“This does not necessarily mean Justices are biased against or in favor of attorneys based on their gender,” Carter said. “But it does show that the speaking and questioning behavior of Justices changes based on whether the attorney is a man or a woman.”
The research also revealed that liberal Justices speak 60% more to female attorneys who represent a conservative position, while conservative Justices spoke 22% less to female attorneys representing a liberal position.
The study is among the first to measure empirically the influence of an attorney’s gender on judicial behavior during Supreme Court oral arguments.
The research will appear in the upcoming issue of the Rutgers Law Journal, and comes at a time of rekindled awareness of gender and judicial behavior, being the first time in history with three female Supreme Court Justices.
Phillips and Carter analyzed more than 13,000 sentences from 57 sets of oral arguments between 2004 and 2009, measuring Justices’ levels of information seeking and the amount of speaking they did to attorneys (word counts).
“Though this doesn’t necessarily mean the Justices are more or less likely to vote for or against women attorneys in deciding a case, it raises questions as to why they are treated differently,” Phillips said. “Do female attorneys speak differently or use different rhetorical styles or logical arguments than male attorneys? Work needs to be done on the oral argument behavior of attorneys.”
This article is one of four published or soon-to-be-published pieces by Carter and Phillips on oral argument behavior by Supreme Court Justices.
One article characterizing the Justices’ oral argument styles recently was published in the Journal of Appellate Practice and Process. In that study, the BYU researchers analyzed the Justices’ interaction styles and characterized them as follows:
- Chief Justice Roberts: gentle but astute administrator
- Justice Stevens: reserved, polite veteran
- Justice Scalia: assertive law professor
- Justice Kennedy: cut-to-the-chase questioner
- Justice Souter: inconsistent dominator
- Justice Thomas: reserved observer
- Justice Breyer: king of the hypothetical
- Justice Alito: inquisitive but reserved newcomer
- Justice Ginsburg: consummate academic
This research also categorized justices into four categories: 1) those who talk a lot, ask few questions and monopolize the lawyers’ time: Breyer, Souter and Scalia; 2) those who talk little and are average questioners: Roberts, Ginsburg, Kennedy, Stevens; 3) those who are reserved but inquisitive: Alito; and 4) those who are reserved and not inquisitive: Thomas.
Both the oral-argument-style research and the attorney gender research were based on Supreme Court oral arguments up to 2009. Since that time, female Justices Sonia Sotomayor and Elena Kagan have joined the Supreme Court, which will provide more data going forward on the justice-attorney gender interaction.
Phillips, who completed this research as a graduate student in BYU Communications program, is now a PhD candidate in jurisprudence at the University of California-Berkeley’s Boalt Hall School of Law.