From the November 2017 Desktop News | Drs. Dana Patton and Joseph Smith, both associate professors with The University of Alabama’s Department of Political Science, recently published their paper “Lawyer, Interrupted: Gender Bias in Oral Arguments at the U.S. Supreme Court” in the Journal of Law and Courts.
The paper discusses the disparities in how male and female lawyers are treated while arguing in front of the Supreme Court.
Patton originally noticed the difference while playing a transcript of oral arguments for a class she was teaching. While the students listened, she noticed that the justices were interrupting the female lawyer repeatedly. Immediately after the class, she asked Smith about her observation. From there, their research began.
Over the next several months, the pair picked through three decades worth of Supreme Court transcripts, using a program written by Smith to sort through pieces of the transcript.
Once they were sorted, Patton and Smith used different characteristics to measure the complexity of the interruptions—how long the lawyer is allowed to speak before being initially interrupted, how many times they were interrupted, the average number of words they were allowed to speak between interruptions, and the average number of words that justices used when the lawyers were interrupted.
After analyzing their research, Patton and Smith came to a few conclusions: female lawyers are interrupted more often and for longer periods of time than male lawyers. Patton and Smith argue that the justices’ implicit biases may cause them to view females as “out of place” when they are making arguments before the Supreme Court, and this orientation may cause the justices to interrupt them more.
“There is research on oral arguments and interruptions that suggests that the lawyer that gets interrupted more is less likely to win,” Smith said. “This is probably because the justices are tipping their hands about which side they find more persuasive, and if they find more holes in one side, then they ask more questions and probe that side more.”
Patton took this a step further, explaining that even when female lawyers are on the winning side, they are not given the same regard as their male counterparts.
“This was a big surprise to us, frankly, because the literature is pretty solid that shows lawyers on the winning side get more speaking time and they have more authority,” Patton said. “But when that lawyer turns out to be a woman for the winning side, she does not get that same differential treatment.”
The answer to why the justices might treat women this way, even subconsciously, lies in the concept of implicit biases. These biases are the associations people make about others based on stereotypes that surround some aspect of who they are, such as their gender.
Females, for example, tend to be seen as caring and nurturing, while males are seen as strong and aggressive. These can translate over to career paths, so when people see a female in a traditionally male career, they subconsciously question her because she seems out of place.
“If you ask the justices if they treat female lawyers differently than male lawyers, they would say ‘absolutely not, we treat everyone equally.’“ Patton said. “But in reality, we don’t do this all of the time because of these implicit biases that affect us.”
Patton and Smith continued to explain that, when people become more aware of their implicit biases, they are more likely to combat them in the workplace, creating an equal playing field for all lawyers no matter their gender. The more people are aware of their own biases, the closer we are to equality in the workplace.