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A new report by two Brigham Young University researchers says U.S. Supreme Court justices interact differently during oral arguments depending on an attorney's gender.
BYU associate professor of communications Ed Carter and then-BYU graduate student James Phillips analyzed more than 13,000 sentences from 57 sets of oral-argument transcripts between 2004 and 2009. They measured the justices' levels of information-seeking and the amount of speaking (word counts) they did with attorneys.
What they found is that gender does matter — not in the case of the judge. But it does matter in the case of the attorney. Justices tended to make more comments and ask fewer questions of women attorneys, the report says.
With a few exceptions, the study indicated that justices popularly considered to be "conservative" spoke 22 percent less to female attorneys representing a liberal position. On the other hand, so-called "liberal" justices spoke 60 percent more to female attorneys who represented a conservative position.
Carter said the findings don't necessarily mean the justices are negatively biased toward women.
"But we did find they do behave differently in terms of their questioning and their statements to the attorneys based on gender as a whole," he said.
Phillips added that the findings don't mean the justices are more or less likely to vote for or against women attorneys in deciding a case. But it raises questions as to why they are treated differently, which is not something addressed in the report, he said.
The research was done before Justices Sonia Sotomayor and Elena Kagan joined the court.
Phillips, who completed the report as a graduate student in the BYU communications program, is now a doctoral candidate in jurisprudence at the University of California, Berkeley's Boalt Hall School of Law.
Carter said he had been intrigued by the topic of oral arguments since he graduated from law school and spent time clerking for an appeals court judge in California. Oral arguments are the only time attorneys personally make their cases before the high court.
The gender report will be published in the upcoming issue of the Rutgers Law Journal.
"I was intrigued with what we found," Carter added. "It does shows there are a lot of layers of richness to what goes on at oral arguments, both for purposes of study as well as practical purposes."