In a
March 20 oral argument, when Justice
Sonia Sotomayor interrupted an advocate’s response to a question from Justice
Stephen Breyer, Roberts cut her off and said, almost plaintively, “Maybe could we let him finish the answer, please?” A few minutes later, Justice
Neil Gorsuch cut off another advocate as he answered a question from Justice
Elena Kagan. Roberts interrupted Gorsuch and said to the lawyer, “Maybe you could finish your answer to Justice Kagan's question.”
The research: Supreme Court interruptions have been the subject of
empirical research recently, with studies showing that
female justices get interrupted more than males, among other findings.
The latest study of Supreme Court interruptions takes a more historical approach, with surprising results. In the latest issue of the Journal of Supreme Court History,
three political scientists report that the number of interruptions during oral argument reduced significantly after 1972.
Why? Because that was when then-Chief Justice
Warren Burger ordered that the court’s traditional straight bench be cut into three sections and repositioned to create a “wing”-shaped bench so that justices could see and hear each other better.
“By making the structural changes he did to the court’s bench, Burger enhanced collegiality among his brethren,” the authors state. It’s a fascinating historical study showing that seemingly simple structural changes can make a big difference in the way people interact.
But here’s the problem: The plunge in the number of judicial interruptions has clearly not continued into current times. The authors acknowledge as much, citing their own earlier study showing that between 1998 and 2007, justices asked questions or made comments a total average of 129 times per case. By necessity, that number includes a whole lot of interruptions during the mainly hourlong arguments.
Roberts clearly seems exasperated about the interruptions, not to mention the hapless advocates who have to keep up with the verbal barrage.
So why did the “winged bench effect” fly away, and what can be done about it?We asked two of the authors,
Ryan Black of Michigan State University and
Ryan Owens of the University of Wisconsin. The third author,
Timothy Johnson, teaches at the University of Minnesota.
The “why” question was easy: “One answer is that Justice [Antonin] Scalia redefined the culture of oral argument at the high court. Not only did he change the dynamic of oral argument as soon as he arrived at the court, he also affected the behavior of those who came after him, leading to a hot bench. At the same time, the court exacerbated this effect by taking more and more salient cases.”
Possible remedies: Unlike some academics, Black and Owens were willing to offer solutions to the problems they studied. So here they are:
➤➤ Chief Justice Roberts could try to “clamp down more” on interruptions by justices and be more rigorous about not giving advocates extra time to speak, in the manner of his predecessor and mentor
William Rehnquist.
➤➤ Allow advocates to have five minutes of uninterrupted time to speak before the justices pile on.
➤➤ Roberts could institute a “queueing” policy, requiring justices to line up electronically to ask their questions. Whichever justice pressed the button first would have his or her microphone come on first, possibly reducing the number of times when justices speak over each other.
➤➤ Here’s another option, not from the political scientists: Justices could just curb their enthusiasm and let each other—and the advocates—speak their piece.
What do you think? Roberts has extended argument time to be more advocate-friendly. The five-minute allotment could just increase the interruptions during the remaining 25 minutes. And it’s hard to envision tech-wary justices fiddling around with queuing buttons.
Got an idea about how to solve the problem? We'd love to hear feedback: tmauro@alm.com and mcoyle@alm.com. We'll collect some of the responses and plan to share them. 
Comments
Post a Comment