As Supreme Court begins new term, how to explain justices’ silences, interruptions, and ‘aggressive’ questions

As journalists, we focus first on getting the facts right. We pay less attention, though, to the way we describe people. Descriptions help us understand people, but they can also lead to misinterpretation if they’re not supported with context.

This is especially true in coverage of politicians and the Supreme Court justices, whose 2011-2012 term begins today. Because these leaders make influential decisions, we describe how they speak, how they interact with others, and how they come across when making decisions.

But how fair and accurate are the descriptions we use?

“When we’re describing someone, we can pass judgement on that person without even knowing it … It’s just automatic,” said Deborah Tannen, a linguistics professor at Georgetown University and author of “You Just Don’t Understand: Women and Men in Conversation.”

In a phone interview, Tannen addressed some words that journalists have used when describing the justices: Aggressive. Outspoken. Direct. Blunt. Detail-oriented. Reticent. Smart. Rhetorically-gifted. These descriptions tell us something about the justices, but they mean more in context.

Timothy Johnson, political science professor at the University of Minnesota, has been tracking the Supreme Court’s oral arguments since 1998. His research shows that Stephen Breyer is the most talkative justice, followed by Antonin Scalia. Sonia Sotomayor ranks fourth on the list, while Elana Kagan ranks fifth. (Interestingly, Breyer and Scalia also get the most laughs during oral arguments.)

In this Oct. 8, 2010 file photo, members of the Supreme Court gather for a group portrait at the Supreme Court in Washington. Seated from left are: Associate Justices Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, Associate Justices Anthony M. Kennedy, and Ruth Bader Ginsburg. Standing, from left are: Associate Justices Sonia Sotomayor, Stephen Breyer, Samuel Alito Jr., and Elena Kagan.

Many (though not all) of the stories I’ve read about Kagan and Sotomayor refer to them as “aggressive” and “outspoken.” But when I searched for stories describing Breyer and Scalia the same way, I found very few results. This is anecdotal, of course, but it did make me wonder: How does gender play into the way we describe people?

While researching the language used to describe men and women, Tannen said she’s noticed that the media are more inclined to describe women as “aggressive.”

“It’s definitely the case that a women might be described as aggressive, while a man might be described as assertive,” Tannen said. “The difference is that aggressive is bad. It rubs people the wrong way.”

It’s common, she said, “to comment on anything unexpected.” Some people don’t expect women to disagree or ask a lot of tough questions, so there’s a tendency to use words like “aggressive” or “outspoken” when describing them.

Similarly, Tannen said it’s much more common for women to be called “feisty,” just as it’s more common to say a woman “fainted” and that a man “passed out.” It’s also more surprising, she said, when a women swears than when a man swears. Tannen recently took several calls from journalists who wanted to interview her about former Yahoo CEO Carol Bartz’s use of profanity. (Bartz called the board members who fired her a bunch of “doofuses” who “f—– me over.”)

“Why are people writing articles about her that make reference to her salty language? Would it be noticed if a man used similar language?” Tannen asked. “You don’t expect women to curse, so everyone noticed that she was doing it.”

The language people use, Tannen said, has a lot to do with where they’re from. Sotomayor and Kagan are both from New York City, so it makes sense that they might be more “outspoken.”

“The manner of speaking for both women and men in New York City would come across as combative in many other parts of the United States,” Tannen said, noting that people from New York City tend to show involvement by talking. “You show you’re a good person by showing your involvement rather than backing off. ‘Aggressive’ and ‘outspoken’ are often words that are applied to people in that part of the country.”

This handout photo provided by the Supreme Court shows, from left: Retired Justice Sandra Day O’Connor, Justice Sonia Sotomayor, Justice Ruth Bader Ginsburg and Justice Elena Kagan in the Justices’ Conference Room prior to Justice Kagan’s Investiture, Friday, Oct. 1, 2010, at the court in Washington. (Steve Petteway/Supreme Court, AP)

Geographical differences also affect the way people interact with each other. Tannen remembers reading about Sandra Day O’Connor getting upset because Ginsburg had interrupted her. It would be easy to frame this kind of exchange as a cat fight and miss an important piece of context about language.

“It probably had to do with how long a pause each one thought was appropriate. That length of pause is shorter in New York City than in Texas,” Tannen said, referring to the places Ginsburg and O’Connor grew up. “They probably had a different sense of how long a pause is normal.”

An understanding of how geography affects language could help journalists put the justices’ interruptions into context. So could Johnson’s research on interruptions, which shows that, on average, 5.5 percent of O’Connor’s utterances were interrupted. It also shows that Ginsburg interrupts people fewer times than most of the justices.

Johnson’s research on interruptions is based on oral arguments from 1998 to 2007, so it doesn’t yet include Kagan and Sotomayor. Some stories have suggested that Sotomayor is “adept at interruption” and that when Chief Justice John Roberts shuts down justices, “Sotomayor seems to be a frequent target.”

When Sotomayor was nominated, many referred to her as “a bully” and a “terror on the bench.” Others wondered if she really was a bully or if the description was sexist.

Nina Totenberg, legal affairs correspondent at NPR, said she thinks there was “plenty of sexist coverage” when Sotomayor, Kagan, Ginsberg and O’Connor were nominated. But that seemed to change once the justices were sworn in. “Once they put on that black robe,” she said, “they become unisex.”

When it comes to oral arguments, Totenberg doesn’t think journalists or the justices focus on gender.

“All the women justices are quick to say that they don’t think their gender has anything to do with the outcome of the case and I think it’s probably true. But I do think there is a desire to say there’s no difference when there sometimes is,” Totenberg said. “Speaking as a woman and watching the way women operate in the workplace, I would say there’s a difference, but I can’t prove it.” (In a 2009 New York Times interview, Ginsberg said she believes having female justices does make a difference, especially in discrimination cases.)

Johnson agrees that there’s not a difference in the way journalists cover the male and female justices during oral arguments. Sotomayor and Kagan are often verbose, he said, so “aggressive” and “outspoken” seem like fitting descriptions. “I think it’s pretty clear from watching the proceedings that they’re pretty tough questioners and they speak quite a bit more in comparison to a Roberts, Alito or a John Paul Stevens.”

Clarence Thomas, meanwhile, has gone five years without speaking during a court argument. According to Johnson’s research, he’s spoken an average of 91 words per oral argument since 1998, compared with Breyer, who’s talked an average of 738 times.

Tannen suggests that journalists pay closer attention to the words they — and others — use to describe the justices. If journalists hear someone call a justice “aggressive,” she said, they should try to figure out what behavior is being described rather than reporting the description as fact.

It’s worth asking: How else could that behavior be described? Would it be described differently if the speaker was a male instead of a female, or vice versa? What if the justice were a veteran of the court rather than a newbie? If something about a woman surprises you, ask: Would I be surprised by this behavior if this person were a man?

Conversational style can reveal a lot about power on the court, Tannen said: “Simply getting the floor and keeping the floor cannot take place without the interplay of conversational style — how long a pause one expects relative to others, whether or not one senses another is winding down and it’s OK to overlap, or whether one feels one has to wait for a nice perceptible silence to be sure the other is done, by which time someone else may have sensed the winding down and jumped in.”

She went on to say that conversational style isn’t just a matter of where a justice (or anyone) was born, raised or educated, or what their ethnic, class, or cultural background is. Individuals have many influences, such as their parents’ conversational styles or their place in the sibling order, or just plain personality, and they don’t always conform to expectations.

“So should journalists describe justices’ backgrounds? Not necessarily, though this could be one of several factors to take into account,” Tannen said. “But should they look more closely at the interactions underlying evaluations? Yes.”

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