John Blomster: Welcome to DISCOVERY, a podcast where we take a deep dive into today's biggest legal and legal-adjacent issues with distinguished guests and experts from around the globe who we’re fortunate enough to host at the UW School of Law. I'm John Blomster. And today we're speaking about the Supreme Court with Tonja Jacobi, Stanford Clinton Sr. and Zylpha Kilbride Clinton research professor of law at the Northwestern Pritzker School of Law in Chicago. Tonja is an expert in judicial behavior and strategy in public law, who's done some really interesting work in areas including judicial politics, criminal procedure, constitutional law and Supreme Court oral arguments. She's also the founder of scotusoa.org, a website devoted to empirical analysis of Supreme Court arguments and what those findings tell us about the dynamics of the court and potential impacts on the decisions it makes. This is definitely a must listen for anyone interested in looking at the high court through a very unique lens. So, thank you very much for joining us.
Tonja Jacobi: Thank you for having me.
Blomster: So, in a broad sense, why are Supreme Court oral arguments so important and also unique in terms of seeing the decision making process of the court?
Jacobi: So, oral arguments are one stage in the judicial decision-making process for the Supreme Court. They are the only stage that are open to the public in any way. So, we get to see what the justices are asking the advocates, sort of questions they're posing, as well as other comments that they might be making and comments they might be making to each other. So, we get to see the way that they phrase questions to themselves. So, for example, when they post hypotheticals, are they trying to design a new test that could become doctrine in a new case, for example. And so we get to see the justices minds at work. And so that's really important for those of us who want to study judicial behavior. And also, I think, to make the rule of law, apply in some ways, by having people see how decisions by such a powerful body are made is very important in terms of accountability and transparency.
Blomster: So, the research that you're doing is really, really unique, and we're going to get into that, but how did you first become interested in doing these kinds of empirical study on the Supreme Court oral argument?
Jacobi: So, my research in general is on judicial decision-making and the Supreme Court, particularly the strategy involved, how the justices bring about the outcomes that they want. And so oral argument is just one part of that. But because we can measure some of that behavior, it's unique in the insights that we can gain.
So, I used to listen to a lot of oral arguments just because I'm interested in how the Supreme Court frames its decisions. And I realized that a lot of students were going through law school without ever having listened to an oral argument and heard that part of the process. So, I started teaching a class. And then I started listening to even more oral arguments and seeing patterns in that behavior. So, the very first pattern that really struck me was the way in which the female justices were being interrupted by the male advocates. And that was the first paper that I wrote. I wrote it with a student who had noticed the same pattern. And then after that, a whole bunch of other patterns started emerging, and questions where there wasn't necessarily a clear pattern, but I wondered or is there. Is this a phenomenon? Or is this just something you see in particular cases? Is this just an effect you see in particularly salient cases, for example? So, there's so many questions that I have a huge document that's just a list of interesting questions to go into.
Blomster: Absolutely. And we're going to touch on, you know, a few of them—gender being the first one, because obviously, that was just a real breakthrough papers, so much good stuff. But how do you even go about doing this kind of research? Because I can imagine the level of detail that you need to go in is so finite. So, kind of, what's your methodology? And what are the different aspects of your research?
Jacobi: So, the first big step is taking every word spoken at oral argument since 1955 I have gone back to now and turning it into an enormous database. So, there's a lot of work involved in getting that database in a usable form. And so that's been a multi-year project, to be honest, and that's still ongoing. And every time there's a new case, we have to download the case and put it into the database and make sure that every speaker is properly identified and so on. A lot of that was done for us by oyez.org, which is a great resource. For those interested, it has every Supreme Court oral argument going back into the 1950s. And so you can look up who the advocates in the case, you can listen to the oral arguments. And so what we wanted to do is turn that into usable data. So, if you wanted to search, for example, how often does somebody say, “Excuse me” at oral argument? You have to put that in a form where you can search across the entire time history of the court. And that enabled us to ask some really interesting questions about how patterns of behavior have changed over time, for instance.
Blomster: So, let's start with one of your most popular topics, you know, interruptions and you know, the different ways that that breaks down in the behavior of the court. So, in your paper, you point out that interruptions are a way of, you know, exerting influence, whether it's interrupting advocates or one another. There are some very clear trends when it comes to ideology, seniority and then gender. So, what trends do you see among the justices when it comes to interruptions in gender?
Jacobi: So, what my first paper on this showed was that at that time up until 2016, included, the female justices were being interrupted about three times as often as the male justices, both by the other justices and by advocates, but particularly by the male advocates. Now we have seen some change for the better happened since that paper came out. That paper got an enormous amount of attention, not just in the US, but worldwide. And I think part of it was that a lot of women and some men are really recognized that phenomenon—that women are interrupted at much higher rates than men are. And that's been shown in many, many different contexts. What was interesting about this paper was here we are studying some of the most powerful people in the country, have reached the pinnacle of their profession, and yet still gender defines how they're treated by their official inferiors, like the female justice are supposed to never be interrupted by advocates. And yet, we still saw female justices being interrupted by male advocates. And so that, I think, got a lot of attention from people quite rightly, because it bled into important questions about do women get to have as much influence? Do female justice to get to ask their question and have their influence on oral argument which can influence case outcomes? So, I think it's very important from that perspective. But I think it's also important for what it says about us as a society that no matter how successful a woman is, she's still treated as a woman in some senses.
Blomster: So, some mansplaining at the at the highest level.
Jacobi: Oh, yes, yes, definitely.
Blomster: Insane. Does this change depending on how many women are on the court, or has it been fairly the same?
Jacobi: I actually suspect that it seems to be, we haven't had that many women on the court, I guess I would first off say. So, it's hard to tell. There have been four in history. At the moment, we have three which is the most there's ever been and we see considerably more interruptions now than they used to be. And so there is some other social science literature that show that once women reach more than just a token number that sometimes men get threatened by that and actually become worse behaved in gender terms. And so arguably we're seeing that, but it's hard to pull apart because there are so few instances of women being on the court. And it's happening at a time when the court is becoming more ideologically polarized, as well. So, it's difficult to pull apart how much is gender and how much is other changes such as polarization?
Blomster: Right, that was the next thing I want to talk about were, you know, you've also found trends in terms of seniority, but also, you know, ideology is as a main one. What correlation have you found between interruptions and that, kind of, those terse interactions between justices with ideological differences?
Jacobi: So, justices are much more likely to interrupt another justice of the opposite ideological camp. So, liberals are more likely to interrupt conservatives than they are fellow liberals and same for conservatives. The effect is particularly strong that conservatives are particularly likely to interrupt liberals. That's the most common effect that we see. So, there's definitely an ideological trend as well.
Blomster: Just for fun, who's the most disruptive and who is the least disruptive in terms of interruptions?
Jacobi: So, the clearest effect is that Justice Sotomayor is interrupted more than anyone else. And there's a perception some people say, “Oh, well, she talks so much,” but actually, that's not true. She's way more interrupted than she is—than she does interruptions, for example. So, if you just look at as a proportion of how often you speak shows that you're probably more likely to be interrupted and to also to interrupt. And that's not the case for Justice Sotomayor. It takes her more speech episode to say the same number of words as it does for the other justices. In terms of who does the most interrupting, Justice Kennedy was the standout justice. He did a lot of interrupting. Now that he's left the court I'm not sure that there's as clear a pattern. Certainly the justice who does the least interrupting is Justice Thomas, but that's because he barely speaks. He speaks a few words on average a year.
Blomster: Yeah, you look at a lot of the charts that you do on scotusoa.org and you see all the different graphs and stuff and then there's Thomas, you know, right at the axis like right at the very start, you know, zero zero.
Jacobi: Well, it's interesting that Justice Thomas, he only speaks a few words on average and, and he goes many, many years without speaking at all. But when he does speak, he shows exactly the same patterns that the other justices show. So, in terms of, you know, being more likely to interrupt the other side, being more likely to interrupt women, and also being more likely to interrupt an advocate he will ultimately vote against rather than vote for—that’s a trend we see for every justice and even Justice Thomas with his few, his tiny end of a few words a year we see the same pattern.
Blomster: Do these kind of tense interactions among the justices, do they influence future voting patterns at all, even notwithstanding whether or not they agree or is it kind of you know, you leave it out on the field, but at the end of the day, you know, you're going to vote where you're going to vote?
Jacobi: So, I did a follow up article on the gender interruptions article to see, okay, what effect does this have because this was the question I kept getting, and Kyle Rosamma and I did a study of this and we found that each interruption between a pair of justices was associated with a statistically significant impact of being more likely to disagree in the ultimate case outcome. So, about a 7% decrease in likelihood to vote together, a second interruption between the pair of justices brought it up to 10%. And a third interruption brought it up to 13%. Now the problem is we can't say do the interruptions cause the disagreement or does the underlying disagreement cause the interruption? But either way, it's shows that interruptions are associated with conflict. So, that's important, whichever direction the cause and effect runs in.
Blomster: That's crazy. That's still, those seem like pretty significant numbers, especially, you know, as part of these major cases that, you know, change the face of American society.
Jacobi: Yes.
Blomster: That’s pretty high numbers.
Jacobi: Well, what’s interesting, you can actually predict pretty well how a justice is going to vote by things like who they're interrupting. And so, you know, there's sometimes a lot of money riding on Supreme Court cases. So, we actually are able to predict cases not just based on interruptions, but on various other factors that we look at who is spoken to more by the justice that you’re speaking during the time of the advocate on one side versus another is a pretty good prediction of which way you're likely to vote. Now we have more complex predictors for each justice, where we have what's called a Bayesian model for each justice, which is essentially how each justice generally behaves. And then compare that to their behavior in a given case in order to predict they're likely vote outcome in that case. You can't get at hundred percent right, but you can make a decent prediction.
Blomster: Touching on gender again, another thing that you study is minutes of speaking time. Do you see similar gender-based trends when it comes to speaking time and amount of words during oral arguments for the justices?
Jacobi: So, I'm not sure if this is answering your question, but we did do a study for last term showing how much time the female advocates got to speak compared to the male advocates. And we showed that as whatever time you got, there aren’t that many women who appear before the court and those that do are often solicitors general. Now solicitors general tend to get more defference from the justices. So, you'd think, “Okay, well, women might get to speak more, on average per minute that they're up there, the amount of time they speak versus the justice as speaking. And we actually found the opposite. Women got less time than men during there time speaking, so say they had 10 minutes or 20 minutes to speak, they had less of that proportion. And there were women. And even though solicitors general did get more time in general, nonetheless, still women were getting less time.
Blomster: So, related, but you know, a little bit of a lateral step here in a piece from last year you talked about the significance of laughter at the Supreme Court, which was a really fun piece to read, you know, talking about how many times there's laughter in the court what it signifies. This seems, you know, like a seemingly innocuous you know, just lighten up the courtroom some heavy stuff, but you found it actually means quite a bit more in terms of influence and power plays and stuff. So, why should we, you know, as you say take laughter seriously in the court.
Jacobi: In a previous project, my co-author Matthew Sag and I had shown that oral argument is now dominated by the justices advocating rather than just asking questions in a neutral way, which is how the Supreme Court website describes what they're doing. They are spending more and more time making comments rather than asking questions talking during the time of the advocate they're likely to vote against rather than the advocate they speak for. Okay, so that's by way of background for showing general judicial advocacy by the justices. And we wanted to see if laughter fit that same pattern. When we saw laughter at the court was it because of the justices were being funny and that just would arrive in various circumstances like quixotic circumstances, because opportunities for hilarity arose.
Blomster: So many opportunities for hilarity.
Jacobi: [Laughter] Yes. And we found no, that's not what's going on at all. In the same way as the justices use up the time of the advocate that they going to vote against. They also make jokes, inadvertent comments, like they make comments that cause laughter in the courtroom much more during the time of the advocate they ultimately vote against than the advocate they vote for. And so we take this as a sign of laughter being used as a form of dominance and advocacy by the justices. So, they're deliberately making comments that will make fun of the advocate that they disfavor essentially. And so it was a fun project. We have lots of instances of funny circumstances and lines that were made. But we do think there's something serious going on there, in that, that it's a sign of judicial non-neutrality.
Blomster: Yeah, it's like you're saying it's a fun thing to analyze. But it's also it's very concerning. And these trends, you know, you say, you've been studying this going back, you know, over 50 years, you know, going back to 1955. During arguments, why have we seen these trends almost accelerate since, I believe, in 1995, you know, you mentioned was a real big turning point where you start to see this really ramp up. Why in the past 25 years are we seeing, you know, these dramatic trends in terms of how the justices interact with advocates and one another?
Jacobi: So, a lot of people have noticed that oral arguments changed over time. And people have different theories as to why and the most common one that I heard was people saying, “Oh, Justice Scalia came onto the court and he's so changed the nature of oral argument. He was just a one man institutional change.” And I just found that hard to believe. I'm a political scientist by training. And I knew that starting in around 1995, a huge acceleration happened in the polarization in the country. So, at the congressional level, there was huge amounts of political polarization. Polarization occurred prior to 1995. But with the republican revolution of 1994, was when we really saw this sort of us versus them mentality really creep in. We saw the members of Congress voting strictly much more along party lines, you know, to the point where now, you know, look at the vote on impeachment, there was one republican who voted to impeach the president or voted to convict the president. Sorry. And so I had an expectation that maybe the reason oral argument was changing was because of polarization. That the Supreme Court justices are political figures. And they're highly educated, which is associated with higher levels of polarization. They're more engaged in politics. And so we went in and we tested was that there were a significant change starting in 1995. And across the board, we used dozens of different measures of variables of different types of judicial activity, different types of judicial advocacy, and we saw a huge increase starting in 1995. The only effect we saw really starting in 1986, when Justice Scalia joined the court was that the number of comments versus questions asked by, posed by the justices massively increased starting in 1986. So, if there's one thing Justice Scalia is responsible for, it’s that move away from the new neutral sort of question asking and more towards conclusory statements being made by the justices, everything else was 1995.
Blomster: These trends present a lot of issues, you know, in terms of the neutrality of the judicial branch, you know, at the highest level. So, what do you tell law students who are looking for opportunities to reverse this trend? Is that even possible? Is there opportunity for that? And if not, you know, what can, you know, future legal professionals do to make positive impact on these kinds of issues?
Jacobi: That's a tough question. I think, well, one thing that we can do is we can shine a light on what's going on. So, after I wrote the gendered interruptions paper, two supreme court justices, Justice Sotomayor and Justice Ginsburg both commented on the importance of that paper and how it's actually been talked about by the justices. Chief Justice Roberts also acknowledged that he had it at least heard about, and I'm not sure if you read it, but Justice Sotomayor said that it changed the way the court was operating and that some of the male justices actually apologized to her after that came out.
Blomster: Wow.
Jacobi: And that only happened because we brought attention to the issue. And I'm sure that the male justices were not aware of what they were doing, that they were not only interrupting women more, but once interrupting somebody, they were more likely to cede the floor to a man than to a woman. And so I think a lot of the time, these are sort of subconscious biases. And so I think the best thing we can do is to study it. And to show these patterns are systematic, and you know, sunshine is the best disinfectant.
So, I think bringing social science techniques in this way to studying judicial decision making is really important because it shows objectively what is going on rather than just everybody can have an opinion. Everybody can advocate. Everyone can make a doctrinal argument about which way the law should come out. But if you can actually show using large end data, what is happening, then we can have a different kind of discussion about what should happen. And so I guess that's what I would say.
Jacobi: Tonja Jacobi is Stanford Clinton Sr. and Zylpha Kilbride Clinton research professor of law at the Northwestern Pritzker School of Law in Chicago. She is also the founder of scotusoa.org which features unique insights that draw on extensive empirical study of Supreme Court oral arguments. It is absolutely fascinating. You have to check it out. This and more are the subjects of much of her scholarly work. And so you can find links to all of this plus much more on the topics we've discussed today in our show notes on our podcast page at law.uw.edu. You can also subscribe on Apple podcast, Google Play, Spotify and more.
So, Tonya, thank you so much for joining us. This was a lot of fun.
Jacobi: Thank you for having me, John. This was a great discussion.
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