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Justice, Interrupted: The Effect of Gender, Ideology, and Seniority at Supreme Court Oral Arguments

Oral arguments at the U.S. Supreme Court are important—they affect case outcomes and constitute the only opportunity for outsiders to directly witness the behavior of the Justices of the highest court. This Article studies how the Justices compete to have influence at oral argument, by examining the extent to which the Justices interrupt each other; it also scrutinizes how advocates interrupt the Justices, contrary to the rules of the Court. We find that judicial interactions at oral argument are highly gendered, with women being interrupted at disproportionate rates by their male colleagues, as well as by male advocates. Oral argument interruptions are highly ideological, not only because ideological foes interrupt each other far more than ideological allies do, but also because, as we show, conservatives interrupt liberals more frequently than vice versa. Seniority also has some influence on oral arguments, but primarily through the female Justices learning over time how to behave more like male Justices, avoiding traditionally female linguistic framing in order to reduce the extent to which they are dominated by the men.

We use two separate databases to examine how robust these findings are: a publicly available database of Roberts Court oral arguments, and another that we created, providing in-depth analysis of the 1990, 2002, and 2015 Terms. This latter data allows us to see whether the same patterns held when there were one, two, and three female Justices on the Court, respectively. These two sets of analyses allow us to show that the effects of gender, ideology, and seniority on interruptions have occurred fairly consistently over time. It also reveals that the increase in interruptions over time is not a product of Justice Scalia’s particularly disruptive style, as some have theorized, nor of the political polarization in the country generally arising from the 1994 Republican Revolution. We also find some evidence that judicial divisions based on legal methodology, as well as ideology, lead to greater interruptions.

Functionality Screens

Among intellectual property (“IP”) doctrines, only utility patents should protect function. Utility patents offer strong rights that place constraints on competition, but they only arise when inventors can demonstrate substantial novelty after a costly examination. Copyrights, trademarks, and design patents are much easier to obtain than utility patents, and they often last much longer. Accordingly, to prevent claimants from obtaining “backdoor patents,” the other IP doctrines must screen out functionality. As yet, however, courts and scholars have paid little systematic attention to the ways in which these functionality screens operate across and within IP law.

We have four tasks in this Article. First, we identify three separate functionality screens that IP laws use: Filtering, Exclusion, and Threshold. Second, we illustrate the use of these different screens in copyright, trademark, and design patent laws. Each law takes a different approach to screening functionality. Third, we model the relative costs and benefits of the different screening regimes, paying particular attention to administrative and error costs and how these costs affect incentives and competition. Finally, we assess the current screening regimes and offer suggestions for how they might be improved.

Constitutional Avoidance: The Single Subject Rule as an Interpretive Principle

The single subject rule, which prohibits bills from containing more than one “subject,” is in place in forty-three state constitutions and has existed since the nineteenth century. It is frequently litigated and has led to many high-profile laws being invalidated or severed. Although the policy rationales behind the rule are well known and largely agreed upon, applying the rule has proven challenging. Courts have struggled to formulate coherent doctrine for what constitutes a distinct “subject,” as demonstrated by the myriad of vague, malleable tests developed by state courts. As a result, single subject rule jurisprudence suffers from fundamental flaws, including unpredictable, arbitrary decision making and high enforcement costs.

This Note posits that the single subject rule’s enforcement problems stem from courts’ perception of it exclusively as a substantive rule to prevent logrolling and to further other policy goals. This Note proposes an alternative conception of the single subject rule: as an interpretive principle based on the canon of avoidance of constitutional doubt. Approaching single subject rule adjudication in this way would allow courts to enforce the principles of the single subject rule without having to precisely define the contours of a statute’s “subjects,” thus averting many of the difficulties in applying the rule. Employing the rule as an interpretive tool would also allow courts to uphold a law while still enforcing the single subject rule by narrowly construing the law’s various ambiguous provisions. In this way, it would help courts skirt the negative consequences that may result from severing or invalidating popularly enacted statutes and initiatives.

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