FEMALE JUDGES, INTERRUPTED: A STUDY OF INTERRUPTION BEHAVIOUR DURING ORAL ARGUMENT IN THE HIGH COURT OF AUSTRALIA.

• Date: 01 December 2019
• Author: Loughland, Amelia

I Introduction II The Empirical Study A Findings III Possible Explanations A Volubility B Seniority C 'Female Register' D Gendered Conversational Norms E Institutionalised Gender Bias IV Normative Implications A Women's Judging and Participation B Is Representation Enough? V Solutions A Chief Justice Regulation B Training VI Conclusion VII Appendix I: Statistics Organised by Interruptee VIII Appendix II: Full List of Transcripts A 2015 Full Bench Transcripts B 2016 Full Bench Transcripts C 2017 Full Bench Transcripts I INTRODUCTION

Kiefel J: I have a little difficulty in understanding why you introduced the notion that almost inevitably a State will legislate where it has effectively opted out at the national ---

Mr Donaldson: Yes, I say that, your Honour ---

Kiefel J: Could I just finish the question? (1)

An interruption of speech, such as that experienced by Kiefel J, violates the 'conversational contract' (2) by disrupting the implicit rule of turn-taking in any dialogue. (3) Such interjections are not simply impolite, but allow the interrupter to assert dominance over their conversational partner. (4) Behavioural research has found that men tend to interrupt women at a far higher rate than vice versa, (5) suggesting that conversational interruptions both reflect and maintain unequal gender power relations in society. (6) Yet it would be reasonable to expect that such interpersonal expressions of dominance would be suppressed in settings where women hold institutional positions of power over men. This expectation is supported by American studies that have found, in an experimental setting, that a speaker's position of authority may have a greater effect on speech patterns than gender. (7)

However, this article will reveal how women even at the pinnacle of a high-status career continue to experience gendered behaviour. Descriptive statistical analysis of interruptions as recorded in transcripts of High Court oral argument shows that female High Court judges were interrupted far more frequently than their male colleagues. These findings echo those of Professor Tonja Jacobi and Dylan Schweers in the US, who showed that gender was the salient explanatory factor for interruptions between judges across three terms of the US Supreme Court, even after taking into account ideological and hierarchical divisions on the Court. (8) As well as finding empirical evidence for a systemic gender effect in interruption behaviour between 2015-17, I also found that interruptions of female judges counterintuitively increased in 2017 when the Court was first led by a female Chief Justice, the Hon Susan Kiefel AC. The fact that everyday conversational patterns are replicated in the highest courts is surprising when considering how far removed formal oral argument is from the setting and norms of everyday conversation, and illustrates how gendered norms transcend even the highest spheres of judicial authority.

In this article, I consider possible explanations for the gendered patterns of interruption of judges in oral argument, including their respective volubility, seniority and manner of speaking. A closer look at the specific kinds of interruptions reveals how gendered conversational norms are reproduced by male advocates against female judges, (9) and how their deferential behaviour towards male judges further may indicate an institutional bias in favour of masculine judicial authority. I then consider the normative implications of these results for the participation of female judges on the High Court and question whether greater representation of women on the Bench is enough to ensure their substantive equality. Ultimately, I argue that advocates must be made aware of their implicit biases and that the Chief Justice should take a more active role in regulating oral argument. However, given that interruptions increased under Kiefel CJ, a male Chief Justice is less likely to be seen as 'biased' towards other women and thus may be more effective in this regulatory capacity.

II THE EMPIRICAL STUDY

To determine whether there was a gendered effect in interruptions of High Court Justices and the impact of a female Chief Justice, I analysed transcripts from oral argument in all Full Bench hearings from June 2015 (when Gordon J joined the Court) until the end of 2016 and compared these findings to those from 2017, when Kiefel CJ had replaced French CJ as Chief Justice. These transcripts are publicly available on the High Court's website, (10) and average about 60-70 printed pages in length.

Given that Edelman J was appointed as puisne justice at the start of 2017, there was a consistent gender distribution (three female and four male) and a roughly equal number of hearings (22 in 2015-16 and 23 in 2017) across the two periods. Full Bench hearings were selected in order to maintain a consistent gender balance in each case that was analysed in the dataset. For the purpose of counting interruptions (coded by '---' in the transcripts), (11) I was agnostic as to the interrupter's purpose, and assumed that each interruption had a disruptive impact on the judge speaking at the time. (12)

A Findings

In 2015-16, the three female judges collectively received 52% of the total number of interruptions, whereas the four male judges received 48%.13 While I expected the interruptions of female judges to decrease under a female Chief Justice in 2017, they in fact increased: the three female judges received 69% of the total interruptions, whereas their four male counterparts received only 31%.

B The Chief Justice Effect

As evident from Figures 1 and 2, the Chief Justice in both periods received the highest number of interruptions. In 2015-16, French CJ was a clear outlier among the male judges, demonstrated by the fact that Nettle J was interrupted the second most often but represented only 9% of interruptions overall compared to French CJ's 26%. Yet French CJ's interruption rate is very close to that of Kiefel CJ in 2017, who received 30% of the total interruptions. This suggests that, because the Chief Justice intervenes to regulate oral argument in their 'chairperson' capacity, (14) they have a higher chance of being interrupted by advocates.

Accepting that the role of Chief Justice requires atypical judicial behaviour and requires their removal from the dataset, the gendered interruption pattern becomes stark. After excluding French CJ from the 2015-16 dataset, the three female judges still received 71% of the remaining interruptions (receiving 115 of the total remaining 163 interruptions), (15) despite the fact that they are now being compared with an equal number of male judges. Similarly, even after removing Kiefel CJ from the dataset in 2017, interruptions of the two female judges still represent 56% of the total (receiving 77 of the remaining 138 interruptions), meaning they were interrupted at more than twice the rate of their male colleagues.

III POSSIBLE EXPLANATIONS

A Volubility

The simplest explanation for this disparity is that women create a greater opportunity for interruption by speaking more than their male counterparts during oral argument. However, by counting each judge's total number of speech episodes, (16) I found that they spoke roughly in proportion to the representation of their gender on the Court.

The slightly higher rates of male speech episodes in 2015-16, and of female speech episodes in 2017, can be explained by the 'Chief Justice effect, as both French CJ and Kiefel CJ represent the vast majority of speaking episodes. Putting that aside, these statistics deny any correlation between female judges' volubility and their higher rates of interruption. This is demonstrated by the fact that the three female judges spoke for only 37% of the time in 2015-16, but still received more than half the total number of interruptions. Conversely, the slightly higher amount that female judges spoke in 2017 does not align with the far higher rate of interruption than that experienced by their male counterparts.

B Seniority

Putting aside gender, one might expect that junior judges would experience higher rates of interruption due to a greater degree of deference afforded to senior judges, as physically instantiated by their order of entrance and seating in the Court. (17) Despite the fact that a clear seniority model also applies in the US Supreme Court, Jacobi and Schweers found no evidence of a 'freshman effect', (18) and that seniority '[cuts] both ways' in terms of interruptions between judges. (19) Similarly, I found a clear correlation between seniority and higher volubility, and that these two factors interacted to increase a judge's chance of being interrupted. For example, disregarding the Chief Justice, the most senior judges (Kiefel J in 2015-16 and Bell J in 2017) both received the second highest number of interruptions, but also had among the highest numbers of speech episodes in both periods. (20) It is probable that senior judges are more active in oral argument due to their greater experience and confidence, and so may be more likely to be interrupted due to their higher level of engagement with advocates.

However, the explanatory power of seniority as a cause of interruptions is diminished by a comparison between judges of similar seniority and volubility but of different genders, such as Bell J and Gageler J. In 2015-16, these two judges each spoke for about 11% of the time. However, Bell J received 21% of the total interruptions, and Gageler J only 6%. This trend was amplified in 2017: Bell J spoke marginally more (14%) but received 26% of the total interruptions. On the other hand, the slight increase in interruptions of Gageler J (representing 15% of the total) in 2017 was proportionate to the 6% increase in his Honour's speech episodes.

It is improbable that Bell J's slight seniority over Gageler J (21) could explain the degree of discrepancy between their rates of interruption when considering that...