'Institutional Design and the Predictability of Judicial Interruptions at Oral Argument' by Tonja Jacobi, Patrick Leslie and Zoe Robinson in (2024) Journal of Law and Courts comments
Examining oral argument in the Australian High Court and comparing to the U.S. Supreme Court, this article shows that institutional design drives judicial interruptive behavior. Many of the same individual- and case-level factors predict oral argument behavior. Notably, despite orthodoxy of the High Court as “apolitical,” ideology strongly predicts interruptions, just as in the United States. Yet, important divergent institutional design features between the two apex courts translate into meaningful behavioral differences, with the greater power of the Chief Justice resulting in differences in interruptions. Finally, gender effects are lower and only identifiable with new methodological techniques we develop and apply.
Increasing attention is being paid to interruption behavior, particularly social norms relating to gender differences: not only are women more likely to be interrupted, but this is true even in contexts where women possess significant power, such as in Congress (Kathlene 1994; Mendelberg et al. 2014) and boardrooms (Dhir 2015). In recent years, scholars have observed these same interruption behavior patterns at U.S. Supreme Court oral arguments. Female Justices are disproportionately interrupted compared to their male counterparts Jacobi and Schweers 2017; Patton and Smith 2017; Feldman and Gill 2019). A Justice’s ideology and experience also predict interruptive behavior, and interruption rates increase when a Justice is less likely to agree with a colleague or attorney (Jacobi and Sag 2019; Patton and Smith 2020).
Psychologists and sociologists have long found interruptions to be indications of dominance behavior between individuals (Watts 1991; Zimmerman and West 1975). Interruptions, then, have significance beyond social dynamics: if interruptions are reflective – and potentially reinforcing – of power imbalances, then interruptions can limit the contributions of some oral argument participants and promote others. The U.S. Supreme Court has seemingly recognized this significance, changing its structure of oral argument starting in the 2023 October term in response to findings of disproportionate interruptions of women (Deese 2021). Interruptions at apex court oral argument are particularly important because the transparency of oral argument – especially compared to the rest of the judicial decision-making process – contributes to an apex court’s legitimacy, and gender and other disparities at oral argument may harm that legitimacy and moral authority.
Accordingly, increasing scholarly attention is being paid to interruptive behavior in political and judicial institutions as a means of revealing structures of social hierarchy within deliberation. The systematic speech patterns discovered between genders, for example, raise concerns that greater representation of women on the Court, among both Justices and advocates, will not prevent women’s voices from being drowned out (Dhir 2015; Kathlene 1994; Mendelberg et al. 2014).
Despite the importance of the study of interruptive behavior as a proxy for power in political institutions, few studies look outside the U.S. judicial context to examine the institutional design features that might facilitate or constrain oral argument (but see Bentsen et al. 2021; Krehbiel 2016). The paucity of studies of oral argument beyond the U.S. Supreme Court means we have a limited understanding of how institutional design contributes to judicial behavior at oral argument. This lacuna in the judicial behavior literature stands in contrast to the robust study of the role of institutional design on deliberative behavior in legislative politics (Bäck et al. 2014; Goet 2019; Proksch and Slapin 2012) and among scholars of deliberative democracy when designing mini publics (Fung 2003).
This article examines the role of institutional design in shaping judicial interruptive behavior in oral argument. We examine interruptions at oral argument in the Australian High Court, an apex court that exhibits significant similarities in key institutional features to the U.S. Supreme Court (Aroney and Kincaid 2017). Further, a growing body of empirical scholarship has demonstrated that High Court Justices, like their American counterparts, vote in line with ex ante ideological and partisan preferences (Robinson et al. 2022). This is despite the Australian Constitution not containing the entrenched individual rights that are so often at the center of divisive cases before the U.S. Supreme Court. Relevantly, one recent study showed that case outcomes in the Australian High Court are similarly predicable as the outcomes in the U.S. Supreme Court based on oral argument (Jacobi et al. 2022). There is good reason, then, to believe that interruptions at the High Court may also mirror interruptive behavior at the U.S. Supreme Court, at least in the context of ideological interruptive behavior.
Yet the institutional contours of the Australian High Court differ markedly in two significant respects. First, gender is a significant driver of partisan judicial selection (Gramlich 2018) and judicial decision-making (Boyd et al. 2010) across the U.S. federal judicial system. However, in Australia, there is no comparable gender divide in partisan judicial selection – both major parties have selected women at similar rates; or in ideology – female High Court Justices do not tend to be more or less liberal than male Justices at the time of appointment; or in decision-making – there is no significant gender difference in the propensity to make liberal decisions in the Australian High Court (Robinson et al. 2022). Second, in contrast to the U.S. Supreme Court, judicial seniority is exceptionally important in the Australian High Court. Unlike the U.S. Supreme Court, the Australian Chief Justice has unusually powerful levers of control over both case dockets and oral arguments, including choosing the size and personnel of the panel that hears the case (Mason 2007). As such, the High Court is more hierarchical, leading to an expectation of deference to the Chief Justice and potentially less disruptive behavior by the puisne (i.e., Associate) Justices. Alongside the institutional similarities, these institutional differences provide the foundation to examine institutional-level drivers of interruptive behavior.
We analyze all oral arguments in the Australian High Court between 1995 and 2020. We find that institutional design does have an impact on interruptive behavior at the High Court. Specifically, first, in terms of the effect of ideology, Australian interruptive behavior at oral argument looks remarkably like that observed at the U.S. Supreme Court. This is as we as predict, given that the High Court and Supreme Court are institutionally similar in the ideology of judicial appointments and consequent decision-making, but it is contrary to orthodoxy. Second, while seniority is an important predictor of interruptive behavior in the U.S. Supreme Court, again as we hypothesize, the amplified role of the Chief Justice in the Australian High Court leads to significant differences in interruptive behavior vis-à-vis the Chief Justice. Finally, as expected, the relationship between gender and interruptive behavior in the Australian context is present but meaningfully less than in the United States, consistent with the fact that the gender identity of Australian High Court Justices is theoretically less salient than in the U.S. context due to the institutional features of High Court jurisdiction and the related impact on gendered judicial appointments.
The third result requires further explication. Using standard measurement techniques, as predicted, we find no effect of gender on interruptive behavior in the Australian High Court. Although this result is consistent with our own previous findings (Jacobi et al. 2020), it stands in contrast to studies of interruptive behavior across a range of institutional contexts. To be sure that we are fully and fairly testing whether there is a gender element to interruption behavior, we develop a novel methodological approach to thoroughly investigate the predictors of interruptions. Most studies of interruptive behavior control for an individual’s respective volubility, given that a person can only be interrupted if they are speaking (Johnson et al. 2009; Jacobi and Rozema 2018). But this could permit interruption patterns to be masked by differences in speaking patterns between the genders. For example, a potential interrupter may behave differently depending not only on how many words another person has spoken at oral argument but also how long any individual speech event has been going on, systematically reflecting the varying impatience of interrupters at different stages of the argument. Following this theory, we build in a prediction of the likelihood of an interruption every time any person is speaking. Deploying this approach, we not only confirm the strong impact of the other Justice characteristics we found under the traditional approach of controlling for volubility, but we also find a small but statistically significant gender effect. This result is still meaningfully lower than findings from the United States, as we predicted, but when accounting for the differences between the way men and women speak, there is a small gender effect on interruptions at the Australian High Court. Thus, our third hypothesis is supported, but we find there is more nuance than we, or others before us, anticipated.
Our findings make three key contributions to the literature on comparative courts generally and interruptive behavior specifically. First, by examining oral argument in an apex court beyond the U.S. Supreme Court, our findings contribute to the growing comparative judicial behavior literature mapping the landscape of comparative judicial institutions. Second, we show that interruptions are predictable based on varying institutional design features. Where institutional design is similar, judicial interruptive behavior is similar; conversely, where institutional design diverges, so too does judicial interruptive behavior. Third, we make a methodological contribution by developing a novel methodological approach to account for volubility and its interaction with interruptive behavior, one that we argue is better suited to studying and identifying drivers of interruptions generally. Conceiving of interruptions as predictable probabilistic parts of speech has significance for studies of interruptions generally and U.S. Supreme Court oral argument specifically. Using the probabilistic method, we show that longer arguments are associated with more interruptions, despite less competition for airtime in Australian arguments. This directly brings into question the theory that interruptions in the U.S. Supreme Court are a product of time constraints and the harried atmosphere at U.S. oral argument. This is not purely a theoretical contribution. In the 2021 term, the U.S. Supreme Court changed its structure of oral argument to include a stage where each Justice is permitted to question the advocate without interruption. This innovation was developed specifically to reduce interruptions (Deese 2021). As such, our findings have significance for both the study of U.S. Supreme Court argument and reforms happening on the ground.
