The Experiment Podcast: Justice, Interrupted

The highest court in America isn’t safe from mansplaining. A new set of rules for oral argument may change things.

An illustration of Justice Sonia Sotomayor being interrupted is set into a frame featuring The Experiment’s show art.
Mitch Boyer

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Last week, Justice Sonia Sotomayor announced that the Supreme Court had broken with tradition and changed its rules for oral argument. This came after a study revealed that women are disproportionately interrupted by men in the highest court in America. This week, we’re re-airing a More Perfect episode about the Northwestern University research that inspired the Court’s changes.

This story originally aired on More Perfect, a Radiolab spin-off about the Supreme Court.

Be part of The Experiment. Use the hashtag #TheExperimentPodcast, or write to us at theexperiment@theatlantic.com.


A transcript of this episode is presented below:

Julia Longoria: I’m Julia Longoria. This is The Experiment.

(Plucked up, three ascending notes resonate from an electric guitar over the methodical beat of a tambourine.)

Longoria: We’re a show about our unfinished country, telling stories about people navigating our country’s ideals—and our contradictions.

And last week, Supreme Court Justice Sonia Sotomayor revealed that big changes have quietly been taking place in the highest court of our country.

There’s a new set of rules for how justices can ask lawyers questions in the courtroom. For decades and decades before this, it used to be that justices would just pipe up and ask questions, kind of at random. First come, first served. But a few years ago, a study revealed that women on the Court were more prone to being interrupted.

(For a brief moment, the loop gives way to synthesizers rippling in the wake of one heavy bass note.)

Longoria: Now there’s a new order to it all: They’ll ask in order of seniority.

So to mark the passing of these new rules, this week, we’re re-releasing a story about how things used to be and the study that made these changes possible. I reported it a few years ago for a show called More Perfect—hosted by Jad Abumrad from Radiolab—that’s all about the Supreme Court.

Here it is.

(The ripples overtake the rhythm and sing out for a moment. As the synthesizers quiet, the theme music for More Perfect plays. A guitar line and a galloping beat cradle recorded audio from judges and justices. “Oyez” can be heard over and over from many voices before the music fades down and out.)

Jad Abumrad: Okay, ready?

Longoria: Yeah.

Abumrad: This More Perfect. I’m Jad Abumrad, here with Julia Longoria.

Longoria: Hello!

Abumrad: Hello, Julia!

Longoria: Hi. [Both chuckle, awkwardly at first, then warmly.] Okay. So—so—so, we’ve been getting this question, um, from listeners. And it’s something I’ve always wondered, too, listening to the song we just heard—the “Oyez, oyez!”: Who is that man who’s singing so, like, soulfully and rhythmically? And we—we located him.

Interviewer: I understand that in your retirement, you might be doing some dancing.

Alfred Wong: I dance now! At least once a week for about three hours.

Longoria: Alfred Wong, marshal of the Supreme Court from 1976 to 1994. He’s a New Yorker, son of Chinese immigrants. He earned a Bronze Star Medal in World War II. He worked in the White House. And he loved to dance.

Interviewer: What style?

Wong: Ballroom dancing!

(Ballroom music plays, almost tango-like.)

Wong: Where I, uh, watch other people dance—and steal some of their steps.

(A moment of music.)

Interviewer: I understand, too, you’ve even given a—a lesson or two at the Court?

Wong: Yes!

Longoria: Apparently he taught some Supreme Court staff how to ballroom dance, which is fitting, because, as the marshal of the Supreme Court, part of his job is to keep time.

Wong: I’m the timekeeper.

(A metronome plays over the tango, breaking it up into segments.)

Longoria: Oral argument at the Supreme Court is a bit like a dance.

Wong: Each side generally gets a half hour.

Longoria: One lawyer starts it off.

Wong: As soon as he starts to argue—

Longoria: Or she.

Wong: —I start the clock rolling. It’s a countdown clock.

Longoria: That first lawyer presents to the nine justices. And the justices kind of lead. They interrupt, asking questions.

Wong: So when it gets down to about five minutes, I press a switch in which a white light appears on the lectern.

Longoria: When the first lawyer finishes, the other lawyer gets a turn. Same thing: They present, justices ask questions, but each lawyer only gets 30 minutes.

Wong: Now. That is the, uh, nightmare for many, many attorneys who argue here.

Longoria: When they run out of time?

Wong: Then I have to put the red light on.

Longoria: No excuses. You have to stop.

(The music comes to a strong conclusion.)

Abumrad: Okay, well, that’s, a … Mystery solved!

Longoria: So—so the thing I wanted to talk about today is the dance that Alfred Wong presided over. Sometimes, it gets a little dicey. Okay, so I was working on our episode about Ruth Bader Ginsburg.

Abumrad: Which, by the way, is called “Sex Appeal.” It’s a few EPs back—definitely take a listen!

Longoria: So I was listening to oral argument after oral argument after oral argument,  and I noticed something that kind of sent me down this rabbit hole.

Abumrad: Mmm.

Longoria: So I’m gonna present you what I have as a mini  [Repeated sped-up “Oyez”s play in Longoria’s brief pause.] episode.

Justice John Roberts: Well, I get to say [Clears throat.] that this is case number 11-345.

Longoria: Let’s dive in.

Justice Roberts: Fisher v. the University of Texas at Austin.

Longoria: And the story starts with this guy.

Dylan Schweers: Yes. I—I’m sitting in my living room. On my couch.

Bert Rein: (From a recording.) Mr. Chief Justice, and members of the Court—

Schweers: And I’m listening on my computer to the oral argument.

Rein: (From a recording.) The central issue here is whether the University of Texas at Austin … (Fades out.)

Longoria: His name is Dylan Schweers. He’s a lawyer now, but at the time, he was a second-year law student.

Schweers: A J. D. candidate at Northwestern Pritzker School of Law.

Longoria: And he’s listening to the case for homework. And the case itself doesn’t really matter for our purposes. What matters is the rhythm of the conversation.

Rein: Met the two tests of strict scrutiny …

Longoria: You have the lawyer, Bert Rein, making his case.

Rein: … which are applicable.

Justice Ruth Bader Ginsburg: Mr. Rein, before we get to that—

Longoria: And then you had a justice jump in.

Justice Ginsburg: —because the Court is supposed to raise it on its own …

Longoria: In this case, Ruth Bader Ginsburg.

Schweers: So I’m sitting there, listening.

Longoria: Dylan doesn’t think much of this particular moment because he knows from his professor—

Tonja Jacobi: I’m Tonja Jacobi. I’m a professor of law at Northwestern Pritzker School of Law.

Longoria: —that interruptions are just part of the deal.

Jacobi: Uh, the justices do interrupt the advocates constantly. But that’s—that’s expected.

Longoria: The rule is that the justices are allowed to interrupt the lowly lawyers. But not the other way around.

Schweers: No. There is this rule that says directly, “If a justice begins talking, you—as the advocate—cease talking immediately.”

Longoria: Lawyers are not allowed to interrupt. Which is why, as he’s listening, this other moment really caught his ear.

Rein: Part of the damage claim was premised directly on the constitutional issue.

Longoria: It’s a moment where the lawyer Bert Rein is talking.

Justice Sonia Sotomayor: Look at past Texas v. Lesage with that issue.

Longoria: Justice Sotomayor steps in.

Rein: Lesage—

Longoria: Bert backs down.

Justice Sotomayor: Which says that mere use of race is not cognisable injury sufficient for standing.

Longoria: But then ...

Justice Sotomayor: You still haven’t answered how Lesage gets away from that, but—

Rein: Well, Lesage—

Justice Sotomayor: Give me another …

Rein: Well, I think—

Justice Sotomayor: … Damages question.

Longoria: They start to kind of bicker.

Schweers: Bert Rein, the advocate, and Justice Sotomayor are essentially having an argument amongst themselves, going back and forth, back and forth.

Justice Sotomayor: Virtually all white.

Rein: And that is incorrect.

Justice Sotomayor: And why—?

Rein: And that is an assumption that has no basis in this record.

Justice Sotomayor: Oh, but there is—

Rein: It is a stereotypical—

Justice Sotomayor: No, it’s not!

Rein: —racist assumption!

Justice Sotomayor: It’s not, because the reality that …

Rein: With all deference …

Schweers: So much so that Justice Sotomayor said …

Justice Sotomayor: Let me finish my point!

Schweers: “Let me finish my point!”

(An abrupt ringing flourish signals just how unusual this moment is.)

Schweers: For a justice to say “Let me finish my point,” that is, um—that, to me, was very striking. Because he’s a subordinate walking into their house.

Longoria: He’s like, That’s against the rules! So Dylan keeps listening, and he starts to notice that this moment kinda keeps happening.

Lawyer: Just what does a critical mass …

Justice Ginsburg: Who’s—

Justice Breyer: So your question is whether—your—your point … (Fades under.)

Longoria: Again and again, the female justices just keep getting interrupted.

(A ringing builds to a peak and then disappears.)

Schweers: And I just … I—I could not believe the amount of times that it happened. And I—I—I remember, I opened up a Word doc and I wrote and said, “Term paper idea: Men interrupting women on the Supreme Court.”

(Overly dramatic music plays.)

Longoria: So, at this point, my ladies in the house might be thinking, “Okay, Dylan.”

(A scene from the movie Casablanca plays: “I’m shocked—shocked to find that gambling is going on in here!”)

Longoria: (Sarcastically.) Real shocker.

Schweers: If you were to ask my fiancée about this, I think she would describe the whole thing as “ironic,” so I’ll let you, uh … (All laugh.)

Jacobi: Yeah, I mean, other scholars from linguists to psychologists have shown that women get interrupted.

(A montage of men interrupting women plays.)

Kanye West: (From the 2009 VMAs.) I’m really happy for you! Imma let you finish …

Donald Trump: That’s called business.

Hillary Clinton: Nine—

Trump: Uh! I did not …

Jacobi: (Amid the montage.) In pretty much every forum.

Woman 1: Do you know …

(A man interrupts, babbling almost incoherently.)

Woman 1: I’m sorry, can I—Do you mind if I ask this question?

Man 1: You can, but I just want to put you up on that one point.

Woman 2: That’s right.

Man 2: (Talking over her.) What’s so striking about …

Woman 2: (Trying to finish her thought.) So it’s not … So we don’t have just … Share those …

Man 2: (Continuing over her.) … ADS-CAF2 duality is that it’s not … we don’t have enough information

Audience member: Let her speak, please!

Man: Oh, I’m sorry! (Chuckles.)

(The audience cheers and bursts into applause.)

Man: I always get heckled!

Longoria: Yeah. So men interrupting women, not exactly front-page news. But no one had ever done a systematic quantifying of this phenomenon on the Supreme Court.

(A bossa nova–adjacent guitar line begins to play, lilting and melodic.)

Longoria: So what Dylan and Tonja decided to do was take all the audio from Supreme Court years 2004 to 2015. They feed it into the computer. [Over a scramble of fast-paced conversation.] This is hundreds of thousands of words. Actually, what they fed into the computer were transcripts, not the actual audio, but whatever—and they did hand-code a few additional years, including when Sandra Day O’Connor was on the Court. But to identify the actual interruption points, they had the computer look for dashes. Every time anyone gets interrupted on the Supreme Court, two little dashes pop up on the transcript. [Beep beep!] So Tonja and Dylan created an algorithm that would be able to count the dashes that were interruptions.

(Over the music: Scrambled dialogue—beep beep!—then more dialogue—beep beep! And the music fades down.)

Abumrad: Lemme guess, lemme guess, lemme guess. The female justices were interrupted the, uh—the most number of times.

Longoria: Well, technically, no!

(The background noise cuts out, like a tape being paused.)

Abumrad: Really?

Longoria: The most number of interruptions actually happened between two men.

Jacobi: So, Scalia and Breyer did not get along.

Justice Antonin Scalia: But wouldn’t—

Justice Stephen Breyer: But you have not given us a rational basis except to repeat the word morality.

Justice Scalia: Yes, the rational basis is that the state thinks it immoral, just as the state thinks adultery immoral, or …

Justice Breyer: Or teaching German.

(Fades under.)

Longoria: Justice Scalia, who died last year, leaned conservative. Breyer leaned liberal. They spent about 21 years on the Court together. And during that time, they were constantly up in each other’s grill.

Jacobi: And [Laughs.] Justice Scalia interrupted Justice Breyer four times more often than any other individual justice—except for Justice Breyer who was interrupting Justice Scalia almost twice as much.

(The justices fade out.)

Abumrad: Oh! So ideology trumps gender, that’s kind of, uh—I don’t know—hopeful?

Longoria: No. No, no. Because that spat between Breyer and Scalia? It’s really an aberration.

Jacobi: Even though these two men were actually interrupting each other an awful lot, we still managed to find a very large gender effect.

(A guitar plucks chords in the background.)

Longoria: So when they compiled all of the interruptions together …

Schweers: Over 7,000.

Jacobi: In the 2004 to 2015 period.

Schweers: Right.

Longoria: Plus reaching back to a few years when Sandra Day O’Connor was on the Court. They looked at how many interruptions were happening to the female justices versus the men.

Jacobi: The women are interrupted about three times as much as, uh—as the average man.

Justice Ginsburg: I thought you—

Male justice: (Interrupting.) What’s your authority for that proposition?

Longoria: Three times as much.

Justice Ginsburg: Mr. President, what—

Male justice: I—I have one—one … In—in Parents Involved, we indicated that …

Justice Ginsburg: Sorry, I’m not trying to—

Male justice: You—you—you’d need two separate jurors, wouldn’t you?

Jacobi: I certainly went in with an expectation that we would see that pattern. But I think that what’s really surprising is that our impression that the advocates were interrupting the justices, and that that was gendered—

Longoria: Meaning the male lawyers—the lowly lawyers—even they felt that they could interrupt the female justices.

Jacobi: —that that was shown to be systematic was really shocking, because speech patterns, like interruptions, are a product of dominance, and so men interrupt a lot because they have traditionally been dominant within society. But that means if a woman is in a position of clearly demarcated higher power than the man, then the man should not be interrupting the woman.

Longoria: And in terms of the justices interrupting each other, was there one master interruptor?

Jacobi: Yes, in fact. Absolutely.

Justice Ginsburg: Mr. President—

Justice Kennedy: I have one—one pro—small procedural question.

Longoria: See if you can guess who that is, interrupting RBG.

Justice Kennedy: I wanna make you feel welcome here, but … (Laughter.)

Longoria: He’s the swing vote, considered by some to be the most powerful man in America …

Jacobi: Justice Kennedy. (All chuckle.)

Schweers: Hands down.

Abumrad: He interrupted the female justices the most?

Longoria: Yes. Which, if the number of interruptions is any indication, he might be under the impression that his opinion is more important than everybody else’s on the court. Which is, you know, rude, but maybe not wrong.

Jacobi: He was No. 1. And then he was followed by Justice Scalia and Chief Justice Rehnquist. And we have some great examples. Uh, one of my favorites is, he interrupts …

Justice Ginsburg: Is there any—?

Justice Kennedy: Suppose there are three unrelated cases …

Jacobi: Uh, Justice Ginsburg …

Advocate: Pardon?

Justice Kennedy: Suppose there were three unrelated cases … (Fades under.)

Jacobi: And the advocate starts responding to him. And then about 30 seconds, 45 seconds later, he says …

Justice Kennedy: I inadvertently interrupted Justice Ginsburg.

Jacobi: “I inadvertently interrupted Justice Ginsburg …”

Justice Kennedy: … Uh, but—but in the 19 cases here …

Jacobi: “But!” … And then went on to ask another question. (Jacobi and Longoria laugh.)

Schweers: Yeah. Right. And there was another great example when—it was with Justice O’Connor.

Justice O’Connor: How do we know—?

Justice Kennedy: Getting back to Justice—Justice Scalia’s qu—question. And I think it relates to what Justice O’Connor is asking too. (Fades under.)

Schweers: Justice Kennedy chimes in and says, “I think this gets to what Justice O’Connor was saying.” Uh …

Justice Kennedy: Is your answer to—to the last argument … ?

Schweers: But then went on with his question. So even if it wasn’t really what she was trying to get at, he had a good idea of what Justice O’Connor was saying.

Abumrad: What does Justice O’Connor do in that situation?

Longoria: So Dylan and Tonja actually found, in this linguistic analysis, that women, faced with this barrage of interruptions, they’ve actually found ways—whether consciously or not—to adapt and almost fight back. [Chuckles lightly.] But how about we talk about that after the break?

Abumrad: Deal.

(The break.)

Abumrad: Uh, this is More Perfect. I’m Jad Abumrad, here with Julia Longoria. We’re talking about interruptions on the Supreme Court. So if you are one of these female justices, and you’re getting incessantly interrupted by the men, uh, I’m curious: How do the female justices adapt to that?

Longoria: So Dylan and Tonja noticed that when women first get on the Court, they do this thing in their speech. They call it polite speech.

(Twangy old-timey music plays. A number of different women say iterations of “May I ask … ?” in a montage.)

Longoria: They ask if they can ask a question.

(A similar montage, but this one with variations on “Sorry, but …”)

Longoria: Or they apologize for asking a question.

Jacobi: “Sorry to interrupt but—but may I,” you know, “I’m going to ask a question.” And during that time, the men will just jump in.

Justice Elena Kagan: Can I ask— [A male justice interrupts, stumbling over his words.] Can I?

Jacobi: Justice Kagan just gets interrupted again and again and again. And at one stage when she says, “Can I ask?” I think Chief Justice Roberts actually says yes.

Justice Kagan: Can I ask?

Chief Justice Roberts: Sure. Sure! [A quick pivot.] It depends on who’s making the referral.

Jacobi: And then goes on to ask his question. [Both laugh.]

Longoria: Oh no.

Jacobi: So no, not really.

Schweers: Yeah! So no, not really, you can’t. Right.

Jacobi: You can ask, “May I ask?” and that’s all.

Longoria: But, over time, Tonja and Dylan find that, eventually, the female justices find a way to adapt to the situation.

Schweers: What we did notice over time is that their use of that language, uh, definitely decreased.

Jacobi: All four of the women show significant reductions in their use of that polite language. Some of the justices never quite get down to the level of male speech. Most of the men enter the Court not using that language much at all.

Longoria: Ruth Bader Ginsburg, having been on the Court the longest out of all the women, seems to be very good at this.

Lawyer: … Ought to be doing.

Justice Ginsburg: (Jumping in quickly.) What was the first reason for saying … ?

Schweers: It’s a little bit more direct. So, instead of saying, “May I ask?” they’re just jumping in.

Justice Ginsburg: Could you please explain your … ?

Schweers: And they’re saying, “Can you point to the statute where it says this?” Or, “Where should we disagree with the lower opinion here?”

Justice Kagan: Have we ever analyzed a case that way?

Jacobi: They’ll start asking the question, a justice will attempt to interrupt, and the woman will just continue talking and often win the floor. So the women start to behave like men exactly.

Longoria: Which tends to fend off interruptions … to a point. Take the case of Sonia Sotomayor.

Justice Sotomayor: (Interjecting.) So what’s the difference between a tower dump and targeting a particular individual?

Longoria: She’s a woman Supreme Court justice, Latina, and—in a lot of ways—she should actually be owning the anti-interruptions game.

Jacobi: Of all the female justices, she’s the one that adapted most quickly to the less polite style and started speaking like a man most quickly and, I think, as a result, is seen as aggressive.

(A dramatic undercurrent of music plays through a montage of coverage of Justice Sotomayor.)

Nina Totenberg:A terror on the bench,” “nasty,” “overly aggressive,” “a bit of a bully.”

Steve Inskeep:Blunt, even bullying.”

News anchor: Will her infamous temper—that some have talked about who have practiced before her—flare up at all today?

Unnamed: Sonya Sotomayor, I’m looking at her right now. If she is not a dead-on for Roseanne Barr, it’s Roseanne Barrio.

(The dramatic music fades out as the montage ends.)

Jacobi: So I’ve heard a lot of people say, “Oh, Justice Sotomayor, she’s very aggressive; she talks a lot,” and the numbers don’t really support that. She talks about as much as the average man.

Longoria: Sotomayor is also the woman who gets interrupted the most.

Jacobi: So you’re sort of—you’re damned either way, right?

Longoria: Hmm.

(The bossa nova–esque music is back.)

Longoria: Now, maybe the most surprising thing that they found in this study is that, as more and more women join the Court—like, first you just had Sandra Day O’Connor, then RBG joined; today, you have Sonia Sotomayor and Elena Kagan—you’d think the men might get used to it. They might cool it on the interruptions.

Abumrad: Yes. And?

(The music winds down, out of tune, to nothing.)

Longoria: No. It was the opposite. The number of interruptions has increased.

Jacobi: It’s certainly as there are more women on the Court. We can’t say for sure if that’s the cause or if that’s just at the same time, um, but given that there is so much interruption of women disproportionately, and the rate at which women are being interrupted seems to be increasing in the last—particularly in the last four years, since there have been three women on the Court. Um, it does seem to be in line with other research in areas such as Congress and the boardroom that show that, as more women enter a traditionally male domain, the men become actually more aggressive rather than getting used to the idea. So when there are a few token women, they can live with that. But as the numbers increase to, you know, a significant plurality, [Stifled, uncomfortable laughter.] then the men start, you know, really interrupting the women.

Longoria: Oh no. (Laughs awkwardly.)

Jacobi: It could be that there’s a hump you eventually get over. [Longoria laughs again.] Maybe if we had half of the Court being women, uh, eventually the men would settle down and get used to the idea. Maybe? (All chuckle.)

Schweers: Maybe.  

Longoria: RBG gets this question all the time, as the most senior woman on the Court.

Justice Ginsburg: When do you think it will be enough? When will—will there be enough women on the Court? And my answer is “When there are nine!”

(Remixed bandstand music plays, made electronic.)

Abumrad: Thank you, Julia.

Longoria: You are welcome.

Abumrad:

Thanks also to Tonja Jacobi and Dylan Schweers. We’ve got their study at http://www.radiolab.org/moreperfect.

Supreme Court audio is from Oyez, a free law project in collaboration with the Legal Information Institute at Cornell.

Leadership support for More Perfect is provided by the Joyce Foundation. Additional funding is provided by the Charles Evans Hughes Memorial Foundation.

(A chorus enters in over the Spanish lyrics, singing “Shut up, just shut up!” so sweetly that the words aren’t decipherable at first. As the horns hit a button at the end, three “Oyez”s echo into the quiet.)

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