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Conservative Justices Tend to Exert More Verbal Control When Addressing Female Lawyers, Study Says

Posted Jun 23, 2011 5:30 AM CDT
By Debra Cassens Weiss

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Conservative Supreme Court justices tend to talk more and ask fewer questions when addressing female rather than male lawyers, a new study has found.

Liberal justices, on the other hand, do the opposite, according to the study (PDF) and a press release summarizing its findings. The study, set to be published in the Rutgers Law Review, equates the extra talking with “verbal control.”

Brigham Young University communications professor Ed Carter, a lawyer, conducted the study with then-BYU graduate student James Phillips. Carter tells the ABA Journal he can’t say why the conservatives are talking more and questioning less when women lawyers argue cases.

“I don’t think it necessarily means that justices are biased against women,” Carter says. “I think a fair bit of it could be unconsciously done and perhaps it just has to do with the personalities of the justices who tend to be identified as somewhat conservative.”

Carter and Phillips drew their conclusions based on more than 13,000 sentences spoken during 57 oral arguments during the 2004 through 2008 terms, before Justices Sonia Sotomayor and Elena Kagan joined the court. Justice Anthony M. Kennedy, often a swing voter, was classified as conservative for the study.

The study scored each of the justices’ questions based on whether it was a rhetorical or leading “pseudo-question,” a “bipolar” question requiring a yes-or-no or true-false answer, or a more open-ended information-seeking question. The researchers also tallied justices’ word counts.

The study found that the four liberal justices, including Ruth Bader Ginsburg, all engage in higher levels of information seeking with female than male lawyers. “Gender does matter, but not the gender of the justice,” the study says.

Just one justice—Antonin Scalia—broke from his conservative colleagues, asking slightly more information-seeking questions of female lawyers. On the liberal side, Justice David H. Souter broke from his colleagues in terms of word count, talking more rather than less to female lawyers.

Justice Stephen G. Breyer, who is known for his lengthy hypotheticals, was the justice with the lowest score overall for information-seeking questions (with the exception of Justice Clarence Thomas, who spoke in only one of the 57 cases studied), but he had the highest word count of the justices, averaging 297 words per lawyer. Phillips tells the ABA Journal in an email that those numbers could be interpreted as Justice Breyer being the least inquisitive and the most likely to attempt to control the discussion.

Carter and Phillips are publishing a total of four articles about their analysis of the oral arguments. A different article they published in the Journal of Appellate Practice and Process characterized the justices’ interaction styles this way:

• Chief Justice Roberts: gentle but astute administrator

• Justice John Paul Stevens: reserved, polite veteran

• Justice Antonin Scalia: assertive law professor

• Justice Anthony M. Kennedy: cut-to-the-chase questioner

• Justice David H. Souter: inconsistent dominator

• Justice Clarence Thomas: reserved observer

• Justice Stephen G. Breyer: king of the hypothetical

• Justice Samuel A. Alito Jr.: inquisitive but reserved newcomer

• Justice Ruth Bader Ginsburg: consummate academic

Hat tip to How Appealing. The Salt Lake Tribune and the Deseret News also covered the findings.

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