Sotomayor says Supreme Court adjusted argument format partly over interruptions of female justices

Washington — Justice Sonia Sotomayor revealed Wednesday that studies showing female justices were interrupted more often by their male colleagues had a "great impact on the dynamic on my court" and led to changes in oral arguments. She also lamented that professional diversity among the nine members of the court is "sorely missing," particularly after the death of Justice Ruth Bader Ginsburg last year.

During a virtual event hosted by New York University School of Law, Sotomayor said the studies, namely one published in 2017 by a pair of researchers at Northwestern Pritzker School of Law, have had an "enormous impact" on how the Supreme Court conducts its oral arguments, she said. The 2017 study from Tonja Jacobi and Dylan Schweers found the female justices were interrupted at disproportionate rates by male members of the high court, as well as by male lawyers arguing before them.

"People paid attention," she said of the findings, "and it made for self-examination of behavior."

The studies led Chief Justice John Roberts to be "much more sensitive" to the issue and ensure that justices "were if not interrupted, at least that he was playing referee when interruptions happened." CNN first reported Sotomayor's remarks during the event.

When the Supreme Court returned for in-person oral arguments at the start of its term this month, it launched a new format for its sessions that combined the free-for-all questioning by justices with a round of each member asking questions one-by-one, a holdover from the remote arguments held during the coronavirus pandemic.

A new format for arguments rolled out this term has in some ways cut down on interruptions. Lawyers have two minutes at the start of their argument to make opening remarks without interruption, after which questioning by the justices in its traditional free-for-all begins. Then, once the attorney's time for argument has ended, each justice has the chance to ask questions in order of seniority, beginning with the chief justice.  

By incorporating the one-by-one approach, the high court appeared to adopt a hybrid model for its arguments, as it kept the format used during its remote arguments last year, when the coronavirus pandemic closed the courtroom and forced the justices to conduct the sessions by teleconference.

Justice Clarence Thomas, who rarely asked questions during in-person arguments before the pandemic, was active during the remote arguments and has continued to be this term with the new hybrid sessions.

During her remarks Wednesday, Sotomayor also addressed the diversity among the court with regards to their judicial philosophies and professional experience, noting that with Ginsburg's death last year, the high court "lost our only civil rights lawyer." Professional diversity on the nation's highest court, she said, is "sorely missing."

"We have no real lawyer who's been in the trenches on civil rights issues, whether it's on women's rights or racial rights or even disability rights, on any level of civil rights," she said. "We have nobody on our bench who has done criminal defense work outside of perhaps some white collar work. We don't have anyone who has done immigration work. We don't have anyone who has done environmental work."

Sotomayor continued, "There are so many areas of law that the court touches and whose decisions impact in such tremendous ways that I do worry that the authorities who are selecting judges are not paying enough attention to that kind of diversity as well."

President Biden has been working to nominate candidates to the federal bench with diverse backgrounds and address disparities in the professional experiences of judges, including those who worked as public defenders.

Sotomayor also addressed the differences in judicial philosophies among she and her colleagues. The court's conservatives adhere to originalism — interpreting the Constitution based on the Founders' intentions — and Sotomayor said whether that will lead to dissonance between what the court decides and what the general population accepts as what the law should be is a "fascinating question."

"For me what that will mean is much more dialogue, not open dialogue where the court is actually talking to people about what it's doing, but there's going to be an awful lot of dialogue by the greater society about the role of the courts in our society," she said, adding there are already ongoing discussions about changes to the court's composition or work. "I think that will likely continue given the changes that are occurring in our society."