SCOTUS in the time of COVID: The evolution of justice dynamics during Oral arguments

Abstract

We assess changes in oral arguments at the US Supreme Court precipitated by the COVID-19 pandemic and the degree to which those changes persisted once the justices acclimated to the new procedures. To do this, we examine whether key attributes of these proceedings changed as the Court experimented with telephonic hearings and subsequently returned to inperson oral arguments. We demonstrate that the initial telephonic forum changed the dynamics of oral argument in a way that gave the chief justice new power and reconfigured justices' engagement during these proceedings. However, we also show that the associate justices adapted to this new institutional landscape by changing their behavior. The findings shed light on the consequences of significant, novel disruptions to institutional rules and norms in the government and legal system. | INTRODUCTIONIn early 2020, the public health threat posed by the COVID-19 pandemic forced institutions, both public and private, to reevaluate how to safely conduct their work. Courts across the US met via Zoom, Skype, or telephone, and many legislative and executive bodies did the same. The US Supreme Court was no exception. After initially delaying all sessions when it was unclear how long the pandemic would last, it soon became apparent that the Court had to find a means to, at a minimum, address the most pressing pending cases, which concerned issues ranging from Congress' ability to subpoena the president's tax records (Trump v. Mazars 1 ), employers' religious rights under the First Amendment (Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania 2 ), and states' abilities to control presidential electors (Chiafalo v. Washington and Colorado Department of State v. Baca 3 ). To this end, the Court announced on April 13, 2020, that it would hear oral arguments remotely via telephone conference beginning

Institutional Design and the Predictability of Judicial Interruptions at Oral Argument

“…There is a growing recognition among comparative judicial scholars of the critical role of institutional variation in judicial power and behavior (Alarie and Green 2017;Black et al 2018;Robinson 2013). A small body of work has begun to examine the impact of institutional features on behavior at oral argument, including whether the physical shape of the Supreme Court's bench reduced interruptions during oral argument (Black et al 2018) and the impact of online oral argument on judicial behavior during the COVID-19 pandemic (Ringsmuth et al 2023).…”

I Can’t See You; Can You Hear Me? Gender Norms and Context During In-Person and Teleconference U.S. Supreme Court Oral Arguments

“…More than just a change in modality, the Court abandoned its traditional format whereby justices can interrupt attorneys at any time. In its place, justices took turns asking attorney questions (Jacobi et al 2021;Ringsmuth et al 2023). The shift was difficult for jurists and attorneys alike; it was challenging to know when to start speaking or to fully engage without seeing facial reactions or body posture (Bergeron 2021;McGaughey 2021).…”

“…Consequently, female attorneys are often less successful than their male colleagues under some conditions (Szmer, Sarver, and Kaheny 2010) and receive fewer professional opportunities (e.g., Szmer, Kaheny, and Sarver 2021;Tillman and Hinkle 2018). While scholars note that women must navigate a precarious double bind (Kanter 1977;Rhode 1994) , I argue that the shift from freewheeling oral arguments with frequent interruptions to measured, turn-based teleconference arguments alters the context to the point that the underlying evaluative criteria for gender-norm compliance expand (e.g., Chung and Pennebaker 2007;Johnson et al 2021;Ringsmuth et al 2023). This should make it more difficult for women to substantively impact case law.…”

“…altered many aspects of the Court's regular operations (e.g., Houston, Johnson, and Ringsmuth 2023;Ringsmuth et al 2023). Importantly, changing the context fundamentally alters how actors assess information (e.g., Chaiken and Eagly 1983;Ferran and Watts 2008;Guadagno and Cialdini 2007).…”

“…I examine the extent to which gender-normative language predicts oral argument success for (fe)male attorneys through a quantitative textual analysis of transcripts from all orally argued cases resulting in a signed opinion or judgment during the 2018-20 Supreme Court terms (Gleason 2020). The choice of these terms, centered on the Court's March 2020 suspension of in-person oral arguments (Houston, Johnson, and Ringsmuth 2023;Ringsmuth et al 2023), allows for a natural experiment assessing the operation of gender-normative language across two distinct argument formats. I find that changes in oral argument format expand the scope of verbal gender norms that shape attorney success.…”