A recent article in the New York Times by Adam Liptak
reported on a 15-year study concerning oral argument at the United States
Supreme Court. The study, soon to be
published in the Virginia Law Review, was conducted by law professor Tonja
Jacobi and law student Dylan Schweers, both from Northwestern University. They conclude that so-called “conservative
justices interrupt liberal justices at significantly higher rates than liberal
justices interrupt conservatives.” And I
guess conservative justices interrupt their conservative colleagues less often
than they interrupt their liberal colleagues.
For the sake of discussion, I suppose these easy labels have a measure
of legitimacy.
What a
revelation. I thought this interrupting
phenomenon as it occurs in the general public was the other way around. At least that was my impression when I was a
law student at Berkeley in the sixties.
I and all my like-minded liberal friends spent most of our time
interrupting one another. I soon
discovered that this practice did not foster learning. When bullhorns made their appearance on the
Berkeley campus, I began losing my hearing and my mind. The din foreclosed reasoned discourse. The Free Speech Movement restrained my speech. The cost was so high, it drove me out of
Berkeley.
Professor
Jacobi told the Times that “interruptions are generally considered an aspect of
dominance, and the conservatives feel dominant over the liberals.” Jacobi points out that “conservatives have
dominated the court for the past 50 years.”
Looking back at the court some 60 or so years ago, I wonder if Justices
Warren, Black, Douglas, Brennan, and Marshall interrupted their less liberal
colleagues more than the other way around.
Jacobi and
Schweers land another shocker in the April 11, 2017 edition of the Harvard
Business Review. Reader discretion
advised: “[M]ale justices interrupt
female justices approximately three times as often as they interrupt each other
during oral arguments.” The study
covered not just the current Supreme Court, but the court in 1990, when Sandra
Day O’Connor was the only woman on the court.
The court’s practice then, and in 2002 and 2015, reflects a pattern of male
justices consistently interrupting female justices at a far higher rate than they
interrupt their male counterparts. And
as the years progress and the number of female justices increases, so too have
the number of interruptions by male justices.
The authors
believe that Justice Gorsuch will fall within the current pattern based on his
senate hearings. The authors write: “He
could not help repeatedly interrupting the liberal female senators.”
Speaking of
Justice Gorsuch, his name came up during a casual conversation at the El Tovar
Hotel at the Grand Canyon this past January. I was having dinner in a private dining room
with the singing group “Singers In Law.” We were celebrating the birthday of attorney
and singer Linda Hurevitz who came up with the catchy title. The other members of the singing group are
attorneys John Blumberg, Ken Freundlich, and Barbara Gilbert, who is not an
attorney, but is married to a judge, and sometime ago was a court reporter.
None of us
knew it at the time, but the Singers In Law would sing the Star Spangled Banner
before thousands of cheering fans at the L.A. Kings game at Staples Center on
April 2nd. Justice Gorsuch
may have had something to do with it. So
while we were having dinner, Philip Anschutz, who has an ownership interest in
the Kings, Staples Center, the El Tovar Hotel, and a few thousand other
enterprises, walked in and said, “Excuse me, but did you know that Teddy
Roosevelt once dined in this room?” He
then introduced himself. We had a nice
chat with him and his charming wife Nancy. Our convivial conversation covered the history
of the Grand Canyon.
He asked me if
I knew a good friend of his on the 10th Circuit, Judge Neil
Gorsuch. “Gorsuch? Mmm, don’t know him.”
Funny how quickly things change. Anschutz asked about us, and there you have
it.
The Star
Spangled Banner is a tough song to sing, especially a cappella. The Singers In
Law brought the house down. And people
of widely differing political beliefs cheered.
Might be a good foundation for reasoned discourse without interruptions.
Enough wishful
thinking. Getting back to Justice
Gorsuch. After his senate hearings, I
read the case for which he was given heat for his “cold” dissent, TransAm Trucking v. Admin. Review Bd., U.S.
Dept. of Labor (2016) 833 F.3d 1206.
An employee was fired by his trucking company employer for disobeying an
order of the employer. The employee was transporting
cargo in a tractor-trailer for his employer in the late evening hours “when the
brakes on his trailer froze because of subzero temperatures.” (P. 1208.) At
the employer’s direction, he waited several hours for help to arrive. The heater in his cab was not working. He fell asleep and then awakened when he
received a phone call from his cousin.
His torso was numb and he could not feel his feet. He called his employer who told him to either
wait or “drag the trailer with its frozen brakes.” (P. 1209.) Instead, the employee “unhitched his truck
from the trailer and drove away, leaving the trailer unattended. He was terminated for abandoning the trailer.” (P. 1208.)
The majority
agreed with the decision of the Administrative Law Judge and the Administrative
Review Board of the Department of Labor that the driver was terminated in
violation of the whistleblower provisions of the Surface Transportation
Assistance Act. The majority discussed relevant statutory definitions of
“operate,” but also discussed provisions of 49 U.S.C. § 31105(a)(1)(B)(ii),
which make it
unlawful to discharge an employee who “‘refuses to operate a vehicle because . . . the employee has a reasonable apprehension of serious
injury to the employee or the public because of the vehicle's hazardous safety
or security condition.’” (P. 1211.)
The
dissent expressed another point of view. Gorsuch wrote: “A trucker was stranded on the
side of the road, late at night, in cold weather, and his trailer brakes were
stuck. He called his company for help
and someone there gave him two options. He
could drag the trailer carrying the company's goods to its destination (an
illegal and maybe sarcastically offered option). Or he could sit and wait for help to arrive (a
legal if unpleasant option). The trucker
chose None of the Above, deciding instead to unhook the trailer and drive his
truck to a gas station. In response, his
employer, TransAm, fired him for disobeying orders and abandoning its trailer
and goods.
“It might be fair
to ask whether TransAm's decision was a wise or kind one. But it's not our job to answer questions like
that. Our only task is to decide whether
the decision was an illegal one. The
Department of Labor says that TransAm violated federal law, in particular 49 U.S.C. § 31105(a)(1)(B). But that statute only forbids employers from
firing employees who ‘refuse[] to operate a vehicle’ out of safety concerns. And, of course, nothing like that happened here.
The trucker in this case wasn't fired
for refusing to operate his vehicle. Indeed, his employer gave him the very option
the statute says it must: once he voiced
safety concerns, TransAm expressly -- and by everyone's admission -- permitted
him to sit and remain where he was and wait for help. The trucker was fired only after he declined
the statutorily protected option (refuse to operate) and chose instead to operate
his vehicle in a manner he thought wise but his employer did not. And there's simply no law anyone has pointed
us to giving employees the right to operate their vehicles in ways their
employers forbid. Maybe the Department
would like such a law, maybe someday Congress will adorn our federal statute
books with such a law. But it isn't
there yet. And it isn't our job to write
one -- or to allow the Department to write one in Congress's place.” (PP. 1215-1216.)
I wonder if Judge
Gorsuch interrupted his colleagues during oral argument.
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