The U.S. Supreme Court’s hearing of oral arguments via teleconference amid the pandemic represents one of the most significant structural changes to the court’s business in anyone’s memory. Although only a few weeks old, the live streaming of arguments for the first time in history has necessarily required Chief Justice John Roberts to take on a more active role policing the other justices’ talking time. When doing so, Roberts appears to be favoring the court’s conservative bloc, according to a new study from University of Michigan Law School Assistant Professor Leah Litman.
The paper, titled “Muted Justice,” is a window into the Supreme Court’s new – and temporary – procedural landscape. It analyzed which justices were provided with the most opportunity to speak.
The most notable disparity appeared in the court’s most highly publicized bloc of cases on subpoenas for President Donald Trump’s tax returns. In those cases, Litman found that conservative justices were allotted more time to speak before being cut-off by Roberts.
“In the congressional subpoena case in particular, Justice [Samuel] Alito and Justice [Brett] Kavanaugh were both allowed significantly more time than their colleagues,” Litman wrote. “Justice Kavanaugh spoke a minute and a half more than Justice [Elena] Kagan, the Justice who spoke the third most, and Justice Alito spoke almost a minute longer than Justice Kagan. The Chief also spoke relatively more in these cases than in others, where he consistently had the shortest questioning periods.”
The same was true in the case of Manhattan District Attorney Cy Vance’s grand jury subpoena for Trump’s financial documents: “three of the four Justices speaking the longest were conservative Justices.” The difference in time given to liberal justices in comparison to conservative justices in the latter case was “striking,” according to Litman.
“Justice Kavanaugh spoke for 30 seconds longer than Justice Sotomayor, who spoke the second most (and was the most active liberal Justice),” Litman wrote. “Justice Kavanaugh also spoke a full three minutes longer than the next most liberal Justice, Justice Kagan. Both Justice Alito and the Chief Justice, who spoke the third and fourth most, spoke more than two minutes and one minute (respectively) longer than Justice Kagan, the Justice who spoke the fifth most, and the liberal Justice who spoke the second most in the argument.”
Litman herself provided a brief summary of some of her other findings on Twitter, specifically highlighting that “Justice Sotomayor was interrupted the most! Go figure.”
https://twitter.com/LeahLitman/status/1262756034860339201?s=20
“Indeed 9/11 interruptions of other Justices were of women; all 11 were of liberals,” the law professor said.
[image via by Stefani Reynolds/Bloomberg via Getty Images]
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