Yesterday on SCOTUSblog Andrew Hamm pointed out a great new article in the March 2018 issue of the Journal of Supreme Court History. The article is called “Chief Justice Burger and the Bench: How Physically Changing the Shape of the Court’s Bench Reduced Interruptions during Oral Argument” and the authors are the political scientists Ryan C. Black, Timothy R. Johnson, and Ryan J. Owens. In a fascinating empirical study of the Supreme Court, Black, Johnson, and Owens show how the adoption of a curved bench in 1972 reduced the frequency with which the justices interrupt each other during oral argument.
Prior to 1972 the justices sat on a long, straight bench that made it difficult for them to see one another during oral argument. Unable to make eye contact, they frequently interrupted and talked over each other, creating a cacophony of voices that undermined the quality of oral argument. By the fall of 1971, Chief Justice Warren Burger had had enough. He ordered the installation of a new curved bench so that all nine justices could see each other. Workers installed the curved bench in February 1972 and it has remained a fixture of the Supreme Court's courtroom ever since.
The Black-Johnson-Owens article argues that Burger’s curved bench not only succeeded in reducing interruptions among the justices, but also promoted collegiality on the court. Analyzing oral argument transcripts from the ten years before and after the adoption of the curved bench, the authors identify a dramatic decline in interruptions. The chief justice position, sitting in the bench’s center, saw a 50% decline in interruptions by other justices and the positions on the wings experienced a 75% decline in justice-to-justice interruptions.
To be sure, the curved bench has not stopped the justices from interrupting the attorneys who appear before them. The authors note that recent studies find that the justices collectively average 129 questions or comments during each one-hour oral argument. That's more than twice a minute. As the authors rightly conclude, “Put plainly, today’s Court is a hot bench.”
But of course the whole point of oral argument is to give the justices an opportunity to test the attorneys’ arguments. By reducing the frequency with which the justices interrupted each other, the curved bench brought more order to oral argument, which in turn has made it easier for the attorneys to hear and answer the justices’ (many) questions.
It also made it easier for the justices to hear each other’s questions, thus enriching the implicit dialogue between and among the justices. The late Chief Justice William Rehnquist made precisely that point when he observed, “The judges’ questions, although nominally directed to the attorney arguing the case, may in fact be for the benefit of their colleagues.” The curved bench has thus not only helped the justices communicate with the attorneys, it has helped the justices communicate with each other.
The article is a fun and fascinating read. It is also fitting that the article appears in the Journal of Supreme Court History. Besides implementing a curved bench, Chief Justice Burger helped establish the Supreme Court Historical Society, which publishes the Journal of Supreme Court History. Burger's legacy thus lives on in more ways than one.
The article is a good reminder that we don’t spend enough time thinking about how public space design influences political and legal discourse. Indeed, as the authors point out, there are still appellate courts today that use straight benches, 46 years after Burger demonstrated the importance of using space in a way that facilitates civil, orderly, and inclusive dialogue.
Perhaps the time has come to redesign the physical layout of the federal legislative chamber as well? Our polarized and dysfunctional Congress provides disheartening testimony to the lack of civility and collegiality in public life today. It should come as no surprise then that the floor plan of the House and Senate chambers physically separates the two parties. Republicans sit in desks on the right side of the chamber and Democrats sit on the left.
If a design change worked for the Supreme Court, perhaps redesigning the congressional chambers might also improve the level of discourse in Congress. During the 2011 State of the Union Address, some members of Congress chose to sit alongside members of the opposing party in a symbolic display of bipartisanship.
But that was only for one speech and did not represent a permanent change in the physical layout of the House chamber. Moreover, a 2015 American Sociological Review study by two business school professors, Christopher C. Liu and Sameer B. Srivastava, found that Republican and Democratic senators grew more polarized the closer they sat to members of the other party in the Senate chamber.
Still, if there is any chance that an innovative redesign of the House and Senate chambers (as well as the House and Senate office buildings) would promote civility, encourage thoughtful discussion, and disrupt destructively partisan patterns of behavior, it is worth trying. As Winston Churchill once said, “We shape our buildings, and afterwards our buildings shape us.”