The Supreme Court’s Gender Balance

The Supreme Court heard five oral arguments this week. This was one of the two weeks with five arguments scheduled on the Supreme Court’s argument calendar so far in the 2016 Term. All other weeks in the first three argument sessions have fewer scheduled arguments. By comparison, the Justices heard six arguments in two of the first four weeks of the 2015 Term. Since Justice Scalia’s seat on the Supreme Court became vacant some have speculated that the Court is and has been reticent to take on many cases as an equally divided Court could injure the Court’s image and legitimacy.

Of course a Court without Scalia is a changed Court. A recent Washington Post article by Robert Barnes described the first instances of gender parity during oral argument, where an equal number of men and women participated. This parity became a majority in the opposite from usual direction during the oral arguments in Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co. where two women, Catherine Stetson and Catherine Carroll represented the parties, and where Elaine Goldberg argued the United States’ position as amicus curiae. After accounting for Justice Thomas’ regular silence at oral argument, the gender breakdown of speakers at this oral argument was six women to four men for the first time in the Court’s history.

Outside of this case, however, the gender balance was more standard for the Supreme Court where ten of the other eleven attorneys that argued this week were men (the other woman to argue this week was Kathleen Sullivan in State Farm Fire & Casualty Co. v. United States, ex rel. Rigsby.

Beyond this historic moment in the Court, this week Neal Katyal had his first of seven oral arguments scheduled for this Term. Katyal, a veteran Supreme Court attorney and former Acting Solicitor General, spoke the third most words this week for a respondent attorney with 2,561 words. The amount of words spoken by other attorney this week is contained in the following figure:


Interestingly (since women were still so outnumbered), two of the four most verbose attorneys and two of the four attorneys or Justices to speak more than 3,000 words in an oral argument this week were women (Kathleen Sullivan and Catherine Carroll).  Attorney Martin Black spoke the most words in an argument this week in SCA Hygiene Products Aktiebolag v. First Quality Baby Products with 3,480.

While the Justices did not speak as often or as much as the attorneys at any one oral argument (which is almost always the case), their cumulative word counts for the week were, for the most part, in the same range as the attorneys for single arguments. The outliers were Justice Breyer who spoke much more than the other Justices and Justices Alito and Kennedy whose counts fell to the low end. The figure below shows the Justices word counts for the five arguments this week:


In terms of the Justices word counts for individual arguments, Justice Breyer had the most words of all of the Justices in SCA Hygiene Products Aktiebolag v. First Quality Baby Products with 1,558. In the aggregate, there were four instances where a Justice spoke more than 1,000 words this week – Justice Breyer twice and Justices Kagan and Sotomayor once apiece.

Still, when we look at cumulative spoken word counts in terms of gender (attorneys plus Justices), men dominated women speaking 31,418 words compared to the 17,439 words from women. This has much to do with the greater number of male than female speakers.

One of the more interesting findings for the week has to do with the breakdown of questions to statements from male and female Justices. While the male Justices asked 152 questions, the female Justices asked 144. These numbers alone are quite similar, yet they are quite different as a fraction of their total utterances. The male Justices made 501 statements compared to 347 from the female Justices. This leads to a ratio of almost one more statement for each question from the male Justices compared with the female Justices. These statistics accord with findings from previous gender/cultural studies, but are nonetheless interesting in the context of the Supreme Court. This may be not as surprising though when observed alongside other gender norms that the Justices have a propensity to follow.

On Twitter: @AdamSFeldman

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