The position and influence of Chief Justice John Roberts in the US Supreme Court has been under discussion recently, as notions of a “Thomas Court” – due to the ideological sway of Justice Clarence Thomas – and a “Kavanaugh Court”, with Justice Brett Kavanaugh as a significant middle-ground influence, have been suggested. Despite not presiding as the court’s ideological fulcrum, Chief Justice Roberts continues to hold consequential institutional power in his capacity as Chief Justice. His skillful execution of this power has been evident over the years.
A study authored by me five years ago resurfaced discussions on how the Supreme Court’s female justices are interrupted more disproportionately compared with the male justices. This study demonstrated that both male justices and male advocates showed a proclivity to disproportionately interrupt the female justices.
Regulating gender bias in the Supreme Court is necessary for promoting justice and ensuring a fair opportunity for every justice to ask questions. This becomes even more critical in the face of historically low public opinion of the Supreme Court.
Justice Sonia Sotomayor has noted that the Supreme Court, during its 2021-2022 term, revised the oral argument rules to address this gender disparity. A recent study I co-authored with Matthew Sag of Emory Law School, relates another development at the court – Chief Justice Roberts has been increasingly intervening to ensure female justices’ voices are as heard as their male counterparts’.
While the Constitution only refers to the chief in the context of the president’s impeachment, over time, chief justices have leveraged power to assign opinions to other justices, preside over justices’ voting and discussions at conferences, and manage oral arguments.
In our primary study about gendered interruptions, my co-author Dylan Schweers and I recommended that the chief better manage oral arguments by intervening to return the floor to an interrupted justice. Our new study indicates that Chief Justice Roberts has indeed started to execute this responsibility.
From the term beginning in October 2010 up until the 2021-2022 term, Roberts has intervened an average of 13.25 times per term. These instances of intervention have become less rare, marking a statistically significant change after October 2010.
We have explored various forms of intervention, from simply saying the name of the interrupted justice to more explicit measures, as was observed in Dollar General Corporation v. Mississippi Band of Choctaw Indians.
Our analysis shows that while Chief Justice Roberts initially intervened more for men than women, over time, he began rectifying interruptions inflicted on female justices. Starting from the 2011-2012 term, Roberts began intervening more than twice as often, particularly for the female justices.
In sum, although the behavior of the other justices hasn’t substantially reformed in respects to the gender imbalance in interruptions, it has indeed acted as a catalyst for change in John Roberts’s approach. This underscores that he continues to lead the court, actively influence its proceedings, and navigate the arguments even as his role in decisions might be diminished.
Author: Tonja Jacobi