Male Supreme Court Justices Mansplain Judicial Law To Female Justices, New Study Concludes

If you thought America's female supreme court justices are spared the growing epidemic of 'mansplaining', think again. A new study of oral arguments from Northwestern University researchers found that as more women have joined the Supreme Court, "the reaction of the male justices and the male (lawyers) has been to increase their interruptions of the female justices."

Interruptions are often regarded as an assertion of power through verbal dominance, according to the study's authors Tonja Jacobi, a professor at Northwestern Pritzker School of Law, and Dylan Schweers, a J.D. candidate at the school. If that's the case, then women in positions of power should be interrupted less. Yet at the pinnacle of legal power, female Supreme Court justices "are just like other women," they write for Scotusblog, "talked over by their male colleagues."

The 2015 term marked the apex of inter-justice interruptions, but it was not an outlier. In the last 12 years, when women made up on average 24 percent of the bench, 32 percent of interruptions were of the female justices, yet only 4 percent of interruptions were by the female justices. That means each woman was interrupted on average three times more often than each of her male colleagues.

These results are not limited to the Roberts court. We conducted an in-depth analysis of the 1990, 2002 and 2015 terms, to see whether the same patterns held when there were fewer female justices on the court. We found a consistently gendered pattern: In 1990, with one woman on the court (Justice Sandra Day O’Connor), 35.7 percent of interruptions were directed at her; in 2002, 45.3 percent were directed at the two female justices; in 2015, 65.9 percent of all interruptions on the court were directed at the three women on the bench.

The researchers examined the interruptions from multiple angles besides gender. They found that conservative Republican justices dominate liberals by interrupting them. 70 percent of interruptions were of liberals and only 30 percent of conservatives. Note that currently all three women judges are liberals. 

While it is true that Kagan and Sotomayor are junior judges and juniors are interrupted more frequently than Ginsburg. "However, there is no comparison in the size of the effect between seniority on one hand and gender and ideology on the other: Gender is approximately 30 times more influential than seniority," conclude Jacobi and Schweers.

Don't assume that the women justices lie down and play dead on this rude behavior, write the researchers.

Time on the court gives women a chance to learn how to avoid being interrupted – by talking more like men. Early in their tenures, female justices display a tendency to frame questions politely, using prefatory words such as “may I ask…”, “can I ask…”, “excuse me” or beginning with the advocate’s name. This provides an opportunity for another justice to jump in before the female justice gets to the substance of her question. We found that women gradually learn to set aside such politeness.