Wednesday, May 20, 2020
Chief Justice Roberts, Timecop: data-driven analysis of telephonic oral argument in the Supreme Court
In the time it takes for most of us to formulate a coherent thought, @LeahLitman has written an entire paper.
The team here at the Appellate Advocacy Blog has discussed impressions, both our own and those of others, of telephonic oral arguments in the United States Supreme Court. We're fresh off the Court's reluctant pivot in the first two weeks of May to socially-distanced oral argument. And because the Court adopted telephony rather than video, it had to adjust the process of oral argument: the rapid-fire, justice-dominated, interruption-heavy free-for-all dynamic of modern SCOTUS oral argument would devolve into crackling chaos if freighted without modification into a world of sound and fury, void of visual cues. So adjust it did: the justices asked questions in turn, in order of seniority. And they did so under relatively strict time management by the Chief Justice.
As we've seen from the fascinating work of scholars like Tonja Jacobi and others (which I've discussed here and here), there's much one can draw from careful analysis of data from oral arguments. So, as the dynamic of oral exchanges at SCOTUS has shifted in These Challenging Times, it's cool to see scholarship already emerging that extracts and analyzes data from the arguments. Nearly two weeks ago, in a post at his Empirical SCOTUS blog, Adam Feldman broke down the first four telephonic arguments and compared them to the four most recent traditional arguments. Yesterday, Feldman further developed this analysis in a post on SCOTUSblog; it is the first in a three-part series. One of Feldman's conclusions is that the new format "offers an interesting lens into potential improvements for oral arguments moving forward": according to his analysis, the more structured, centrally governed format led to broader participation by the justices, afforded the justices greater chances to interact with counsel, and gave advocates better opportunities to respond to questions. In earlier work, Feldman and Rebecca Gill of the University of Nevada Las Vegas suggested that the Court do what suddenly sounds familiar: (1) have the Chief Justice exercise more control over who asks what and when, and (2) have justices ask questions seriatim, by seniority. Among the possible benefits of a more structured, moderated conversation: fewer interruptions of women justices, a phenomenon that Feldman & Gill carefully analyze and that's the subject of fantastic work by Jacobi and Dylan Schweers.
And that brings us to the work of Leah Litman. Yesterday, Professor Litman posted her analysis of the telephonic arguments. Among the many interesting strands she identifies: at least in this tiny dataset, gendered (and ideological) interruptions appear to persist when the Chief, like Jean-Claude Van Damme, plays time cop. Although Chief Justice Roberts generally enforced time limits on justices' questioning period by interrupting advocates, Litman tallies 11 instances in which he interrupted a justice. Nine were of women. The Chief cut off Justice Sotomayor six times and Justice Ginsburg three. (He also cut off Justice Breyer twice. My normal reaction to this would be, like, who wouldn't, given that Justice Breyer's questions tend to go on a bit. But, as Litman and Feldman both note, Breyer spoke relatively little in the telephonic arguments.) It looked like this:
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There's much more in the piece and much of interest in Professor Litman's data.