Justices act differently for women

Four rigorous academic articles later, a couple of BYU researchers are bona fide experts on Supreme Court oral arguments.

Since 2010 communications professor Ed Carter and former graduate student James Phillips have teamed up on four published or soon-to-be-published articles in law reviews and journals about various aspects of the high court's oral arguments. In their latest installment, an article that will soon appear in the Rutgers Law Review, they determined that gender indelibly influences how the justices of the U.S. Supreme Court treat the attorneys who appear before the high court.

For purposes of the Rutgers study Carter and Phillips labeled eight Supreme Court justices as "liberal" or "conservative." (Justice Clarence Thomas was excluded from the research because the last time he asked a question during oral arguments was Feb. 22, 2006.) After parsing through 57 oral arguments from 2004-09, they determined that liberal justices tend to ask more questions if interacting with a female attorney, while conservative jurists talk more than usual when addressing women lawyers.

"This does not necessarily mean justices are biased against or in favor of attorneys based on their gender," Carter said. "But it does show that the speaking and questioning behavior of justices changes based on whether the attorney is a man or a woman."

Carter and Phillips published a 2010 article in the Santa Clara Law Review about the information-seeking that occurs during oral arguments, as well as a 2011 piece in the Journal of Appellate Practice and Process regarding the justices' oral argument styles. "These articles are all definitely cousins," Phillips said.

So much study of Supreme Court oral arguments by the same two men would've been impossible without genuine passion and enthusiasm.

"Oral arguments are the face of the Supreme Court," Phillips said. "Most of what the court does is behind closed doors, so the court is kind of shrouded in mystery. We really only get to see the court function publicly in oral arguments. … Personalities come out, and you get to see the living, breathing aspect of the court out on display."

They first connected in the BYU Department of Communications, Carter an associate department chair with an emphasis in print journalism and Phillips a graduate student working toward his master's in Mass Communication. However, both also possess academic roots in the law: Carter is a graduate of BYU's J. Reuben Clark Law School; Phillips is a doctoral student in jurisprudence and social policy at UC Berkeley's law school, a course of study he embarked upon after finishing his degree at BYU in 2009.

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