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.”
There is probably no need to redesign the bench for three-member panels on the U.S. Courts of Appeal, as the judges can already see each other just fine.
But it would be interesting to see how many state supreme courts -- which have five to nine members -- use curved benches. The bench for the seven-member Illinois Supreme Court is straight (or at least it was straight the last time I was in the courtroom, although that was some years ago).
Posted by: Steve L. | March 28, 2018 at 08:10 PM
Re: "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."
This arrangement can be traced all the way back to Mirabeau’s “Geography of the Assembly:”
Beginning with the “first National Assembly during the French Revolution, the ‘left-wing’ parties sit to the left as seen from the president’s seat, and the ‘right-wing’ parties sit to the right, and the seating arrangement thus directly indicates the political spectrum as represented in the Assembly.”
As Lynn Hunt writes in her seminal volume on Politics, Culture, and Class in the French Revolution (University of California Press, 1984),
“Like the country as a whole, the national legislature had its spatial differentiations; deputies who thought alike sat together on the same side of the center aisle. During the National Convention, the topography became more subtle yet: the most radical deputies became known as Mountain (or as the mountain men, the montagnards), because they preferred the highest row of benches. Their opponents were known as Girondins because some of their leaders came from the Gironde department headquartered in Bordeaux. The large uncommitted center was known as the Plain or the Swamp, terms that referred to the lower seats occupied by these deputies. Newspapers and clubs taught the voters about the new categories.”
Posted by: Patrick S. O'Donnell | March 28, 2018 at 08:11 PM
I agree, Steve. I actually never thought about this issue before until reading the JSCH article today. But I'm going to scrutinize the bench every time I set foot in a courtroom from now on.
Posted by: Anthony Gaughan | March 28, 2018 at 08:24 PM
I did not know that about the history of the seating arrangements at the National Assembly, Patrick. It's fascinating.
Posted by: Anthony Gaughan | March 28, 2018 at 08:28 PM
According to the article by Black, et al., the ‘72 bench is not really curved; instead, it is slightly angled. A curved prototype was built but never installed.
Posted by: Enrique Guerra Pujol | March 29, 2018 at 01:25 AM
Thanks for your great observation about the bench's actual shape, Enrique.
The authors call it a "curved" bench throughout the article, and it looks like Chief Justice Burger did too. In the first paragraph of the article on p. 83 the authors write that "In short, Burger's hope was that this curved bench would minimize the occurrence of Justices talking over one another while questioning the attorneys."
But I think you are absolutely right that it technically really is an "angled" bench even though the article refers to it as a "curved" bench. The figure on p. 86 of the new bench shows that the "curved" bench is actually three benches, with the benches at the two ends set at angles. In fact, in one of the picture captions on p. 94, they refer to "angled sections."
Moreover, if the picture on p. 86 of the article is any guide, the 1950s prototype of a curved bench would have been only modestly effective. It looks like only the two justices at the far ends of the bench would have seen any improvement. In fact, the 1950s version looks more like the seating arrangement I imagine you'd find at a 1950s nightclub.
So the current "curved" bench that you rightly describe as "angled" turned out to be the best design option.
Thanks again for your comment!
Posted by: Anthony Gaughan | March 29, 2018 at 06:43 AM