RL 54: Adam Feldman — Gender Dynamics & Interruptions between the Supreme Court Justices

In this episode, I interviewed Adam Feldman. Adam is currently a Fellow in the Empirical Study of Public Law at Columbia Law School.  He has a Ph.D. in Political Science from the University of Southern California as well as a J.D. from the University of California, Berkeley School of Law (Boalt Hall). Prior to receiving his Ph.D., Adam practiced law at McDermott, Will and Emery (Century City, CA) and Kendall, Brill and Klieger (Century City, CA). Adam and I discuss his interesting study on the gender dynamics of the Supreme Court justices and the underlying, surprising statistics of interruptions and how they play into gender roles.

Topics covered:

• Exploring the data Adam recovered in his research.
• Understanding the importance of the study and benefits of the research moving forward
• How Feldman's personal perception evolved throughout the study

 

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Transcript

Adam: The Supreme Court justices had all reached this real pinnacle of legal profession that, perhaps, they were on more equal footing than we would see with mixed genders in lower level legal proceedings or practice.

Intro: Welcome to the Resilient Lawyer Podcast, brought to you by Start Here HQ -- a consulting company that works with lawyers to create a purpose-driven and sustainable legal career.

In this podcast, we have meaningful, in-depth conversations with lawyers, entrepreneurs, and change agents. We offer tools and strategies for creating a more joyful and satisfying life.

Now your host, Jeena Cho.

Adam: My name is Adam Feldman. I recently completed a Ph.D. in Political Science with the emphasis focusing on law at the University of Southern California. I’m an attorney. I practiced law for about 4 years prior to entering the Ph.D. program. I completed my legal studies at Boalt Hall School of Law in Berkley.

A little over a year ago I started a blog called Empirical SCOTUS where I look at contemporary and historic issues facing the Supreme Court from a statistical perspective. That goes on my academic work looking at the Supreme Court mainly empirically and also recently extended that work to other court systems both domestically and internationally.

My work is mainly focused looking quantitatively at studying judges, judging courts, court opinions, and other phenomenon in the legal sphere.

Jeena: Today I want to talk about the study that you’ve published titled Echoes from a Gendered Court: Examining the Justices’ Interactions during Supreme Court Oral Arguments. Can you tell me the genesis of the study and how you became interested in this topic?

Adam: Sure.

Around 2010, there were few thousands by political scientist that focus mainly on public law. Looking at oral arguments at the Supreme Court and particularly at this phenomena of interruption between justices. It was an interesting focus because although in prior work there was clearly instances of justices interrupting attorneys -- especially the focus on points that were of interest when attorneys were deviating -- there wasn’t really much of any scholarship looking at what happens between the justices at oral arguments.

There were two studies that looked at interruptions and looked at oral arguments and the justices’ speaking behavior and interactions.

I initially was going to look at this from an updated perspective. I wanted to see what was happening with the more modern court where Sotomayor had a few more years on the court where there’s some data on Justice Kagan. I uncovered the data for the 2015 Supreme Court term. I did this kind of soon after the… I actually did this after oral arguments last year before all the decisions were made.

I noticed this kind of interesting from a statistical perspective, difference between the male justices on the court interrupting the females and the females interrupted versus the males where the male justices were interrupting in higher numbers and the female justices were interrupted in higher numbers. This seemed to be interesting because there was this clustering aspect where it wasn’t just one justice but there were multiple male justices interrupting at the high end and multiple female justices interrupted at the high end.

It seemed like something that was interesting. It was notable because of the scholarship on gender interruptions which I was somewhat familiar with prior when look at greater detail after completing this pilot study.

After I completed this pilot study in May of last year, I became very interested in doing a follow up where I look at multiple years of data and also have other variables in the mix. So control factors such as how often the justices were speaking and then other things that might spew interruptions differently for the justices to really focus in on this behavioral interaction between the justices and see if there was really a gender dynamic at play in more than one term.

Jeena: To back up a little bit, can you talk a little bit briefly about what you mean by interruptions. I think we all sort of have an intuitive sense of what interruptions are and also the two different types of interruptions that you talk about in your study.

Adam: It’s somewhat variable how there actually… There’s multiple ways that interruptions could be conceptualize. One way would be -- and as I’m listening to oral argument audio and then coding any time, one, justice speaks over another, two, to look at this large number of potential interruptions in our study, we use the transcripts from oral arguments and we use all the available transcripts from 2004 through 2014.

We did this because prior to 2004, the justices’ names weren’t listed on the written transcripts. So we couldn’t differentiate who is interrupting whom prior to 2004. Starting with 2004, the justices’ names are written on the transcripts.

Any point in time when one justice or when any person at oral argument starts speaking and then stops when another one cuts them off, there’s a mark in the oral argument written transcript where there’s a double dash prior speaker’s at the end of their speech and that moves into another attorney or justices’ speech. So we were able to use the coding on the written transcripts to then come up with statistics of interruptions where essentially one justice was speaking and before the justice was finished speaking, another justice began speaking.

Jeena: In your study you say, at a basic level, research suggests that men tend to dominate conversations while women are traditionally more passive participants. Do you find the same trend at the Supreme Court?

Adam: This was somewhat interesting for myself and my co-author because we had some prior expectations on this based on literature that was available to us in prior studies. But there weren’t any studies within a political institution at the elite level like the Supreme Court.

So we had hypothesis based on other conversational dynamics that we studied but we’re applying them to a totally new area. Although based on non-prior literature, even in the legal spirit, we found that men tend to talk more often and to also be more aggressive in conversation where they would interrupt both male and female colleagues at a higher rate. We weren’t sure if that was going to translate in the elite environment of the Supreme Court.

But once we actually ran the numbers, we saw multiple different trends overtime. One of which was the male justices ending speak more often but also the male justices would interrupt the female justices more often than they would interrupt their male colleagues.

Jeena: Why does that matter? Why does interruptions matter?

Adam: They matter for several reasons. One is that they can be perceived as threatening.

One area of interest for us was what is the effective and interruption. Does it lead to any noticeable effects? One that we pinpoint right off the bat was that when somebody is interrupted they lose their opportunity to speak at a given point in time.

This is meaningful in Supreme Court oral arguments because a lot of what is asked is contextual based on the point in oral argument. If a justice is asking a question based on the previous questions and based on where the point in oral argument is at any given point in time, if they’re interrupted then it’s unlikely that they’re going to get back to that same exact place again.

The interest of interrupt the justice might be forever lost and so that question is never necessarily answered. Also then the information is lost that might be useful for the opinions for the justices both on the merits. This could potentially shift the outcome of the case depending on when an interruption occurs.

A second effect that we found -- and this was something that was drawn from the data -- was that there’s a differential impact on the male and female justice on the court for when interruptions occur. This was one of the more interesting and somewhat startling findings of the study but it reverberates based on prior evidence from the studies both within and outside of the law where female justices, when they were interrupted, would tend to speak less after an interruption and would speak less for the oral argument than male colleagues.

So there’s this perceived threat that we identified in the data where when female justices were interrupted, they tend to speak less.

This wasn’t only a point in time when they wouldn’t speak more -- when any justices would speak more interruption but actually a behavioral shift that we saw that was different in female justices than male justices that very well might disrupt the female justices’ positions and the questioning at oral arguments.

Jeena: That’s fascinating.

Is that isolated to that particular argument or does that have a ripple effect meaning the female justices interrupted and cheat then tends to speak less in that particular oral argument but does that sort of carry over into the next oral argument?

Adam: We didn’t find downstream effects beyond oral arguments in isolation. We think this might have to do with the different questions that are asked in different oral arguments. The justices’ engagement often times has a lot to do with both their preparation in given phase, their interest in the subject matter.

There are multiple factors that we engage the justices from the outside of oral arguments. We think that it has more to do within oral argument effects and that between oral arguments there are so many factors that need to… whether a justice is prepared to speak at greater length or less.

Jeena: I found the study just so fascinating because it really confirmed what I know from my own life experience of being interrupted and having been in lots of different meetings with other lawyers where you just notice the male lawyers just tend to occupy more of the time that’s actually available to speak and also has a tendency to interrupt each other more.

I’m curious, after having done this study, did that shift your perceptions or shift your own behavior about interruptions and how much you speak?

Adam: To better answer that, I should back up for a second and just get into a little bit of how I ended up co-authoring this paper, it shifted the way that I thought about this dynamic between male and female justices and male and female interaction in general.

After I completed the pilot study, I went to a friend and colleague who I respect greatly. Who also studies public law but also has background studying gender dynamics. Her name’s Rebecca Gill and she’s a faculty at the University of Nevada, Las Vegas in Political Science. I had several discussions with Rebecca about what I had found in the pilot study, what was interesting about this to me, and how I was thinking about this and how I was interested in studying this in greater detail.

Rebecca really had much greater background knowledge of the interruption subject matter than I did. That, along with the first person anecdotal evidence of this, really made it interesting to me to engage her and to see if she would be willing to work on this project with me because I knew she had experience and knowledge that I don’t have and that would very possibly deepen my ability to fill in some of the nuances. So, this was really an educational experience for me from the outset.

Going through the literature with Rebecca helped me understand a little bit deeper of a level of what the gender dynamics in conversation really amount to and how the effects of interruptions effects the impact men and women in conversation -- how men and women and how different types of speaking behavior.

Although this was something that I had seen both in my legal career and in other work settings, it was not something that I studied before and so qualitatively I could base some hypothesis on the observations that I had. I didn’t really have a deeper understanding of this behavior in a sociological context. It was very helpful, for me, to have a co-author who would really help me learn about this dynamic and how we could apply what was already known to the Supreme Court.

Jeena: I’m curious after, or before or after you’ve done the study -- I don’t know if you’d be willing to out yourself. Do you notice the trend in yourself, just that natural tendency for males to interrupt females more?

Adam: I’ve been more tuned in to this since then. I think you would actually be done to ask a question before about the two different types of interruptions.

We look at both interruptions that end up cutting a justice off at a given point in time where a justice brings up a new point. We also look at interruptions where a justice might be supporting in other justices’ point but still talking in their place. Even if it’s a support of interruption, this very well might lead to the interrupted justice losing their train of thought, losing the ability to ask a question at a given point in time.

What I found in speech, and I found this much more in my interactions with female friends and colleagues, was that I might want to insert a point not to change the topic but maybe to echo a thought or to add something that I thought was important into the conversation before the other participant in the conversation was finished making the point.

I did notice this happen relatively frequently in conversation. It’s something that I was not really at all tuned into prior and it was interesting to me because I never thought of myself as an interrupter. I’m actually, I think, often times somewhat soft spoken. When actually tuning in to this, it was much more of a trend that I notice within myself that I’m happy that I’m more tuned into now because, I think, the first step in changing behavior step we’re not thrilled about is becoming aware of them.

Jeena: Yes. I teach mindfulness which is all about awareness.

I want to put a pin in that about what we can actually do to change this behavior. But before we do that, you talk about the difference between the genders when they speak. So you think about apologizing, politeness, and differential speech. Talk more about that.

Adam: We wanted to, in the study, look at speaking behavior in general and see… Sequentially in the paper, we look at the differences in gendered speech behavior prior to looking at the interruptive behavior.

Based on prior socio-linguistic literature, there were many different phenomena that we could attempt to understand at the Supreme Court level and that we also thought would correlate with interruptions, that would correlate with aggressive and passive behavior. We thought that if these interruptions were really significantly impact in female justices’ ability to speak oral arguments that we might see some of these other behavioral pattern in speech.

Two of the patterns that we looked at were deference and politeness. Politeness more in the apologetic sense really. We want to see if the female justices were apologizing more frequently than the male justices. We’re also interested in whether the female justices were actively differing to the male justices more often. If two justices were competing to speak at a point in time, if female justices would yield the oral argument speaking time to their male colleagues.

We did find that in raw numbers that both of these expectations were occurring where the female justices and one in particular, Justice Sotomayor, was apologizing at a grade higher than her male colleagues. But this was also linked  to the female justices on the courtroom generally. We did see this apologetic behavior and a little bit less so but still to a…

This was in the female direction where we saw this deferential behavior as well where the female justices were willing to yield the floor. This was a little bit muddied because we have Chief Justice Roberts also who is a male justice and often times will be the justice that dictates who should speak when it’s unclear which justice had the floor at a point in time.

Because Chief Justice Roberts has a little bit of a different rule than the other justices as he’s somewhat the unofficial moderator of oral arguments, this change, I think, the deference dynamic somewhat from what would have been… We’re looking at nine justices who were in exactly equal roles during oral argument. The apologetic behavior was a little bit easier to identify than deferential

Jeena: Looking at the study, it’s really interesting that Roberts, his “I am sorry account,” is at 30, 34 followed by Justice Kagan at 92.

Now, of course, we have more female justices on the court than before, did that actually change the rate of interruption?

Adam: It did. What we found which, I think, kind of helps explain the story and conceptualize a little bit more is that the two more recently appointed Supreme Court female justices: Justice Kagan and Sotomayor were more active speakers in oral argument than the two prior female Supreme Court Justice Ginsburg and Justice O’Connor. There is a correlation that we found between how often the justice speaks, how many words a justice speaks, and how frequently they’re interrupted.

With greater rates of speech we did see more interruptions. But we also found that Justices Kagan and Sotomayor were interrupted at higher rates than Justice O’Connor and Justice Ginsburg. Justice O’Connor, we only have limited data for because she retired in 2005 and our study begins in 2004. We only have preliminary remarks that make about interruptions that involved her.

We do see the rate increase with Justices Kagan and Sotomayor and it made us wonder whether their increased speech or their greater speech relative to the other female Supreme Court justices acted as some… would have been a threat to a male justices’ dominating oral argument and backlash to that whether conscious or more likely subconscious was more aggressive behavior from some of the male colleagues.

Jeena: Interesting. Is that because they’re violating gender norms?

Adam: Very possibly. We did find that gender norms were prevalent in oral arguments. Somewhat surprisingly getting back to this point that we began kind of naively, assuming the possibility that because the Supreme Court justices had all reached this real pinnacle of legal profession. That perhaps they were on more equal footing than we would see with mix genders in lower level legal proceedings or legal practice.

We expected, at least the possibility, that the gender norms wouldn’t hold strongly in the Supreme Court but they did for the most part. And so because of the other norms that we noticed and that we found with our data, we think that a greater number of these norms were likely and are likely prevalent in the Supreme Court oral arguments and justices’ interactions.

Very possibly, this is due to the socialization of the justices because even though they’re at oral argument, they’re at this high point in legal profession, the justices all had careers prior to that and had backgrounds where they were raised based on gender stereotypes and where this likely created into their subconscious behavior from an earlier point in time.

At the point where they reach their careers in the Supreme Court, they’re already prime gender norms that were not, and are not, easily shed. We assume that the justices’ backgrounds likely contribute to the way that they interact in oral argument than the way that the interrupted behavior is really spewed to where the female justices are interrupted at a greater rate than the male colleagues.

Jeena: You point that in your study that professional women, including politicians, are expected to sort of conform to the gender norms. What happens when we break these gender norms? What happens if a woman justice, or a woman lawyer, or woman politician asserts herself, becomes more aggressive .What does the study tell us about what happens when women break the gender norms?

Adam: We find in the Supreme Court that when the female justices are more active speaker, they’re also interrupted more frequently. This seems like almost like a backlash and then it can work to… Since we see that female justices tend to become more passive after they’re interrupted, this backlash is somewhat effective if the goal is to reassert these gender norms where the male justices speak more often and the female justices was often.

One thing that we found from other studies that was really interesting that we can’t say for certain apply at the Supreme Court level but we do feel like there’s a relatively reasonable chance because this works in other settings but is also occurs at the Supreme Court level is that in behavioral studies of gender interactions, when females interrupt male, this has been seen both by the group as a whole as more detrimental and really is more a negative behavior than when males interrupt.

This notion that females interrupting are judged to a higher standards or to a different standard than men, this plays into our findings that the female justices are treated differently and treat themselves differently after they’re interrupted in the Supreme Court. And that this very well might have to do with these differing perceptions on the effect of male justices interrupting female justices.

Jeena: When women break the gender norms, they’re judged more negatively by both genders. It’s not just the other men in the room that sort of judges that behavior as a negative behavior.

Adam: Yeah. Both the literature and our own findings show that both genders are -- both men and women, I should say, are judging according to the same standard or similar standards that the priming really [unclear 00:34:42] to everyone. Because we’re primed and socialized into this culture of male dominance, we see this effect in both men and women.

Jeena: What is the goal? Is the goal to sort of get rid of these gender norms? Is that even possible? Is that even desirable? Is it a matter of train the men to interrupt less? Is it training the women to speak up more and to take a more assertive position? What does literature say? What are your personal thoughts on this issue? How do we change this?

Adam: I think there are two ways to look at that question. One is what might be the best approach and two is what is most practical.

If we were looking for true equality, we could come up with a system, through oral arguments, that is more equitable from the starting point so that more aggressive behavior doesn’t necessarily garner the ability to speak more often. Whether that’s pushing a button when the justices break speak, whether that’s ordering the justices eventually so they each are given equal share of time to question or even having the chief justice possibly be the one who has a greater role in moderating with this notion in mind that the allotment of speaking opportunity should be equal between the justices.

There are some of these more rigid frameworks that could be employed although we don’t think are necessarily practical given the history of oral argument and the likelihood of major change at this point in time. It’s a practice that’s been in place since… We are from England prior to coming to United States and so it’s unlikely that we’re going to change the dynamics so greatly in a formal way. Although we think of these as possibilities, we think that informal means of change might be the most effective.

We’re not certain that, just like I noted in my own experience, we’re not certain that the justices are aware of this behavior. We’re not certain that they’re not only aware that behavior occurs but also at the numbers and the relative frequencies with which female justices are interrupted and male justices are interrupted.

The starting point might very well be to educate the justices a little bit about both the differential behaviors and about the differential outcomes between the male and female justices and how this affects the trajectory of oral argument, we think that a starting point might very well be to make this more of a conscious subject on the justices’ minds rather than something that’s whether subconscious or conscious, something that is done because the justices are used to certain gender dynamics due to their socialization.

Jeena: Will the similar awareness training be effective for the general populations or for lawyers in particular?

Adam: Possibly as a starting point. But the problem with going about it this way is that some of this is so deeply rooted in our culture and in our psyches that it’s unlikely do necessarily change even with education. It might be something that shifts in the short term. But to make long term change, it’s a point that really has to be reasserted and on a continuous basis.

One approach might be changing the setting somewhat making settings more accommodating for the speakers. This might be taking more active approaches for lawyers, taking more active approaches in meetings to engage the female attorneys and then to prevent some attorneys from taking most of the time from others.

I think, at some situations, there might be more formal means to shift this differential type of interaction. So education is definitely a starting point. It’s not an end point. And because this is something that most everyone has grown up with, it’s not likely that education, in one point in time, is going to then drastically change behavior moving forward.

Jeena: Right. And I would also imagine it’s not just enough to educate but also that there has to be a desire to actually want to change it. If a male just thinks, “Well, I’m happy with the way I talk and I think it’s just fine that I’m interrupting,” I think all the awareness in the world is probably not going to shift the behavior.

Adam: Yeah. I think that’s definitely true. What’s hard to gauge is what level of awareness both men and women have of this to begin with because as I’ve seen and as the studies show, this has become… we become so acculturated to these type of interruptions that it’s not even recognized. It’s just a normal pattern of speech.

Education is definitely, at least it means, to make sure that this becomes a subject of discussion. That it’s something that’s on the forefront rather than the background of people’s minds.

You’re right that education isn’t going to change somebody’s behavior that doesn’t wish to change if there are no associated penalties for acting in a certain way or no guidelines that specify the way that people should talk in a given environment, giving equal opportunity to all participants.

We really see this, the possibility of bringing this up as bringing this to people’s attention as it might not be. Beyond that, more active approaches within different settings, I think, could equalize the situation somewhat and then some of this is going to likely have to be the way that we socialize the next generation so that the norms that were set that are really hard to move away from, that are still being reiterated with current professionals, don’t take hold as strongly in the future.

Jeena: At what age do these gender norms become the norm? Are there studies that show at what age that you’re seeing these gender norms in?

Adam: I guess the differentiating factor is there’s studies that are pre-oral behavior -- so pre-speaking -- that show that we’re already priming boys and girls to act in a certain way, to interact in a certain way. Where some of this… looking for more differential behavior in females, girls, and more aggressive behavior than men is already becoming something that boys and girls are shown and are taught.

Some studies also show that kids mirror their parents. They see the way that their parents interact. When they see these gendered rules that they very well might see that as a way that they should act as well. This happens from a very early age. By the time that kids are beginning to speak and interact with one another, some of this already might be filtered into their understanding of how to behave.

Jeena: Wow, that’s shocking. How do we reverse this? How do we change this if these kids are sort of soaking up these gender norms before they’re even able to speak?

Adam: Well, I think that gets back to somewhat how we educate ourselves; how we raise the next generation.

If we’re somewhat conscious of this and also take a more active approach to equalization in different settings and allowing equal opportunity to both men and women, then perhaps we’ll have a better shot at beginning to mirror the types of behaviors that we hope to see in the next generation in ourselves.

It’s a multi-faceted approach to both educate kids when they’re young and to try to engage in some of this shifting behavior in ourselves. That’s really the only way that we’re going to see change from the ground up. It’s important to both integrate this as best we can within our own lives but also to start kids off in early age and seeing that it doesn’t have to be a situation where males are dominating interaction.

Jeena: Adam, thank you so much for joining me today. I really appreciate the conversation. I think it was really enlightening.

Adam: Thank you for having me. I enjoyed it as well.

Jeena: Adam, for those that are interested in learning more about your study or want to get a hold of you, what’s the best way?

Adam: My email address is [email protected]. I’m more than happy to respond to questions via email. If people are interested in some of this empirical work, along with the pilot study and want to look at in greater detail, my blog is Empirical SCOTUS. So www.empiricalscotus.com and you’re more than welcome to browse the site.

Jeena: Fantastic. Well, hopefully our listeners are a little bit more educated about these gender norms and interruptions and, perhaps, might feel inspired to just notice these patterns in their own lives and perhaps we can slowly, but surely, change these interruptions between people so we can all have better communications.

Adam: That does sound like a plan that we should try to bring to fruition.

Closing: Thanks for joining us on the Resilient Lawyer Podcast If you’d like to build a more profitable and purpose driven law practice, learn more about us at startherehq.com.

If you’ve enjoyed the show, please tell a friend. It’s really the best way to grow the show. To leave us a review on iTunes, search for the Resilient Lawyer and give us your honest feedback. It goes a long way to help with our visibility when you do that so we really appreciate it.

As always, we’d love to hear from you and you can drop us an email anytime at [email protected]. Thanks and look forward to seeing you next week.

 

Closing

Thanks for joining us on the Resilient Lawyer Podcast. If you’d like to build a more profitable and purpose driven law practice, learn more about us at startherehq.com.

If you’ve enjoyed the show, please tell a friend. It’s really the best way to grow the show. To leave us a review on iTunes, search for the Resilient Lawyer and give us your honest feedback. It goes a long way to help with our visibility when you do that so we really appreciate it.

As always, we’d love to hear from you and you can drop us an email anytime at [email protected]. Thanks and look forward to seeing you next week.