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Supreme Court Changed Oral Argument Rules So Male Justices Let Female Justices Speak

Demonstrating that change comes when leaders recognize discriminatory behavior and adjust accordingly, Chief Justice John Roberts changed the rules of oral argument based on a 2017 research paper. In that paper, two individuals from Northwestern Law School asserted, “judicial interactions at oral argument are highly gendered, with women being interrupted at disproportionate rates by their male colleagues, as well as by male advocates.” The authors also found that the female justices learned over time to behave more like male justices, “avoiding traditional female linguistic framing in order to reduce the extent to which they are dominated by the men.”

Speaking at a New York University School of Law event in October 2021, Justice Sonia Sotomayor said Justice Roberts restructured oral arguments. Lawyers have two minutes at the start of their oral arguments to make opening remarks without interruption. Then, any of the justices may question the lawyers in a “free for all.” Justice Roberts changed what comes next. Each justice may ask the attorneys further questions in order of seniority. Justice Sotomayor said the changes have had an “enormous impact.” She finds the other justices are much more sensitive to their behavior and will apologize for interrupting. She noted the male tendency to interrupt women expands across society as a whole.

Tonja Jacobi, one of the study’s authors, said Justice Sotomayor was the most interrupted judge on the court by male advocates and male justices. She also said preliminary results of the rule change showed Justice Roberts interrupting the female justices more, particularly Justice Sotomayor. Jacobi praised the court for taking it seriously but said the process requires “repeated checking in on, to make sure that bad habits don’t emerge even under new rules…”