Gender, Law, and Judging
- Susan HaireSusan HaireDepartment of Political Science, University of Georgia
- and Laura P. MoyerLaura P. MoyerDepartment of Political Science, University of Louisville
Increased diversity among participants in the justice system, particularly judges, has fueled debates about the values and perspectives that women bring to the law. Difference theories advanced by social psychologists and feminist scholars argue for the premise that men and women in the legal system approach questions of justice differently. By contrast, empirical scholarship offers only limited support for the expectation that the sex of the judge is related to behavioral outcomes. Although most research has not uncovered differences in voting between men and women judges, one area in which consistent differences has been found is in sex discrimination cases.
Recent studies suggest, however, that individual differences between men and women judges may emerge if the focus shifts to the litigation process. In one study of trial courts, cases assigned to women judges were more likely to be settled. In another study of appellate courts, women judges were more likely to pen majority opinions that adopted a compromise position. These findings suggest the promise of shifting the analytical focus away from behavioral outcomes to consider whether, and how, women and men in the legal system shape litigation processes. Doing so will require additional data and triangulated approaches that employ both quantitative and qualitative methods.
Additional research is also needed to explore how shifts in the gender composition of the bench affect organizational norms and practices in the legal system at the federal, state, and local levels. Some work suggests that gender diversity affects deliberations on small appellate panels and consensual norms on larger courts. As the number of women and minorities appointed by recent Democratic and Republican presidents has increased, scholars are also now well positioned to conduct empirical research with larger numbers to investigate how women of color on the bench differ from white women and minority men.
Scholars of gender and law investigate a wide range of questions, including those that consider the relationship between gender and judicial policymaking: Do women judges make decisions that are different from their male colleagues’? How does the presence of women judges on a court affect its decision-making processes and outputs? How might judge traits like race, ethnicity, class, and sexuality intersect with gender? This article analyzes existing scholarship that addresses these questions. After a brief introductory section, research on individual level differences in judicial decision-making is assessed. In the third section, the article analyzes studies that focus on the gender composition of courts and judicial panels. The fourth section evaluates research that considers women’s multiple identities in the context of judicial selection and behavior.
Introduction: A Transformation in the Legal Profession and Judiciary
The legal profession has seen a dramatic transformation in the representation of women since the mid-20th century. In the early 1950’s, women lawyers made up only 3% of the profession, with roughly the same proportion (3%) of the law student body being female. By 2011, women made up about half (47.3%) of those students enrolled in law school who were awarded a Juris Doctor (JD) degree.1 Representation on the bench has also increased quite dramatically since 1980, with women making up more than one-third of sitting judges on federal courts and about one-third of all state courts in 2018. Although women now constitute about half of the newly educated labor pool in law, 2018 statistics from the American Bar Association suggest a leaky pipeline, with women making up 35% of the legal profession and 19% of equity partners.
As the demographic make-up of participants in the justice system shifted over the past several decades, this increased diversity fueled debates over the values and perspectives that women and men will, or should, bring to the law. From the 1960s through the mid-1970s, feminists advanced arguments focused on the importance of achieving gender equality in a manner that emphasized similarities between the sexes (Menkel-Meadow, 1989; Williams, 1984). This approach conceptualized gender differences as stereotypes that limited the potential of women to be successful in “a man’s world.” Beginning in the mid-1970s, a number of feminist works in multiple disciplines shifted the focus to argue that women shared valuable traits that united them as women and distinguished them from men. From this viewpoint, acknowledging gender differences should benefit society in a variety of ways. For example, the inclusion of women into a male-dominated profession would yield a broader range of perspectives on legal issues (Menkel-Meadow, 1989) and transform the law to reflect an “ethic of care” (Gilligan, 1982). Feminist legal scholar Catharine MacKinnon emerged as a strong critic of both the “sameness” and “difference” approaches, arguing that both made men the reference point and obscured the true dynamics that contributed to women’s disadvantage, which had to do with dominance: “Gender is also a question of power, specifically of male supremacy and female subordination” (MacKinnon, 1987). Then, in the third wave of feminist theory, an emerging group of more diverse scholars began to argue that difference approaches essentialized women and overgeneralized comparisons between men and women. Feminists from this wave argue that there is more variation within women as a group that is due to different experiences associated with class, race, ethnicity, sexuality, and other traits (Crenshaw, 1998; Hancock, 2007; Menkel-Meadow, 1989).
But in spite of the debates within feminist legal studies, until relatively recently few empirical scholars had produced systematic studies that compared men and women judges’ decision-making. Undoubtedly, this paucity can be attributed to the small number of women serving as judges through the 1970s. Beginning in the 1980s, however, the appointment of the first woman to the U.S. Supreme Court ignited what continues to be a lively academic discussion around the question of whether there are differences in the decision-making of men and women judges (Kenney, 2008). In “Individual Difference: Men and Women Judges’ Decision-Making,” we consider several scholarly accounts and review empirical findings of research that test claims of individual difference.
Individual Difference: Men and Women Judges’ Decision-Making
Underlying expectations of “difference” are theoretical perspectives grounded in social science disciplines, particularly psychology. From one perspective, gendered socializing experiences at an early age contribute to differences in cognitive structures, or schema, used by males and females to categorize people, objects, and knowledge about the social world (Kahneman, 2011). This theoretical account would suggest that women are more supportive of social welfare and policies that provide relief to the economically disadvantaged because women perceive disputes through a lens that subconsciously leads to their responses. Public opinion analyses often report gender differences in attitudes about crime that may be attributed to different schema that correspond to gendered assessments of risk. To the extent that male and female judges rely on schema similar to those used by the mass public, there is the potential for gender differences in judicial decision-making.
Another perspective advanced to explain gender differences in judicial policymaking suggests that implicit biases associated with social identities contribute to in-group favoritism (Grossman, Gazal-Ayal, Pimental, & Weinstein, 2015). In this respect, women political elites will advance the substantive policy interests of other women (Pitkin, 1967). In the legislative context, scholars traditionally have focused on documenting differences in the policy priorities and voting behavior of male and female legislators (Dolan & Ford, 1997; Reingold, 1992; Swers, 2001). Studies find that women legislators tend to be more liberal (Poggione, 2004; Thomas, 1994); however, it does not appear to affect roll call voting, with both men and women representing the interests of women (and men) constituents (Jenkins, 2012). Scholars also find that women legislators tend to focus on education, health, and welfare—issues of concern to women (Swers, 2001). In one study of crime policies, Kathlene (1994) found that women legislators were more likely to pursue community-based solutions, whereas men focused on rights and punishment. Taken together, these studies suggest that women political elites are more likely to have a liberal policy predisposition and place greater emphasis on issues that impact women.
If judges are similar to other political elites, findings from legislative studies lay the foundation for the prediction that women and men on the bench will support different policy outcomes in their decision-making, particularly in those issue areas that are salient to women. Empirical research on judges and courts, however, does not provide clear support for these expectations, with findings that vary by issue area and court (Palmer, 2001). The strongest empirical support for claims of difference has been documented in studies of state supreme court decision-making, particularly in cases involving controversial criminal justice issues (Allen & Wall, 1987; McCall, 2005; McCall & McCall, 2007; Songer & Crews-Meyer, 2000). Empirical research on the supreme court of Canada also suggests judge gender is related to voting behavior (Johnson & Songer, 2009; Songer & Johnson, 2007). On this court, women justices’ voting was more liberal than their male colleagues’ in equality, civil liberties, and economics cases; however, women were more conservative than men in votes on criminal cases (Johnson & Songer, 2009; Ostberg & Wetstein, 2007; Songer & Johnson, 2007).
In contrast to appellate courts, a trial judge need not attend to the views of his or her colleagues when rendering a decision. In this respect, trial courts offer an opportunity to isolate the effects of individual traits and socializing experiences associated with gender. The bulk of empirical research on outcomes of cases before trial judges does not support theories of difference (Ashenfelter, Eisenberg, & Schwab, 1995; Gruhl, Spohn, & Welch, 1981; Kulik, Perry, & Pepper, 2003; Segal, 2000; Walker & Barrow, 1985). However, one recent analysis found a substantial difference in the decision-making of men and women on the federal district court bench (Boyd, 2016). Shifting the focus to pretrial decisions on motions in sex discrimination cases filed by the Equal Employment Opportunity Commission (EEOC), Boyd found that women ruled in favor of the plaintiffs 43% of the time, whereas men did so in 27% of their motions decisions (Boyd, 2016, p. 19). Another analysis illustrates the need to take into account the institutional setting. Collins, Manning, and Carp (2010) found that women judges in federal districts were more likely to support the government in a criminal case unless they were in a district where women constituted a critical mass. Women judges’ voting shifted toward the criminal defendant as the number of women on the bench in that court increased to a level beyond tokenism (Collins, Manning, & Carp, 2010).
Analyses of decision-making on the U.S. courts of appeals in most issue areas provide no support for expectations of gender difference (Boyd, Epstein, & Martin, 2010; Davis, 1992; Farhang & Wawro, 2004; Haire & Moyer, 2015; Songer, Davis, & Haire, 1994; Westergren, 2003). The exception to this generalization concerns cases of employment discrimination where studies find that women judges on the federal appeals courts are more likely to support the plaintiff than are their male colleagues (Boyd et al., 2010; Haire & Moyer, 2015; Moyer & Tanksersley, 2012; Peresie 2004; Songer, Davis, & Haire, 1994).
These studies all concluded that women judges’ personal experiences with sex discrimination (and men’s lack of such experiences) likely account for these robust findings (Boyd et al., 2010; Farhang & Wawro, 2004; Martin, Reynolds, & Keith, 2002). Consistent with this interpretation, surveys of lawyers and judges report that women observe more sexual harassment in legal settings than men (Martin et al., 2002). In a survey of Carter’s female appointees, many of whom attended law schools during periods marked by stark gender inequality, 81% described some form of sex discrimination as the primary challenge facing a woman or man in law (Martin, 1989, p. 207). If personal experiences with prejudice account for gender-based differences in decision-making in this issue area, it is not surprising that one study found that the propensity to support sex discrimination plaintiffs was highest among “trailblazer” women judges on the federal appeals courts, who entered the legal profession during an era marked by gender inequality (Moyer & Haire, 2015). Women judges’ personal experience may also explain Boyd’s findings on the trial courts (2016), where women and men differed in their support for plaintiffs in motions brought in sex discrimination, but not race discrimination, cases.
How might these experiences, perceptions, and judicial decision-making in cases of discrimination be linked? One account, focused on empathy, suggests that these women judges were able to understand the thoughts and feelings of plaintiffs as a result of their shared experience with discrimination. Empathy has also been used to explain why male judges who are fathers will be more likely to support the liberal position in “women’s issue” areas (Glynn & Sen, 2015). If women and men engage in different moral reasoning processes, research by psychologists and other cognitive scientists may be helpful in offering insights on the role of emotion (and empathy) in reasoning that underlies attributions of blame by legal decision-makers (Bandes & Blumenthal, 2012).
Another area where men and women judges may differ from each other is with respect to opinion authorship. As described by Judge Coffin, opinions are “[a judge’s] most visible and enduring contribution to the legal system. They reflect the judge’s unique qualities, values, methods, tone, and approaches” (Coffin, 1994, p. 171). How might the gender of an opinion author affect the language used in the decision? Early work in linguistics found that women’s language more often includes different types of phrases. For example, she found that women were more likely to use “hedges” (e.g., “it seems like”) and intensifiers (e.g., “really”) and that women were more likely to use less assertive, and more polite, phrasing (Lakoff, 1975). Later studies have found that women are more likely to use uncertainty verb phrases that combine first-person pronouns (Mulac & Lundell, 1994). In comparison, male language features include a heavier use of directives (e.g., “Make a note of that”) (Mulac, Bradac, & Gibbons, 2001). Recent computational advances and availability of automated textual analysis software should encourage scholars to evaluate premises advanced by linguistics scholars in the context of judging: Do women and men author opinions that are qualitatively different?
Other scholars have tested whether women and men on the bench approach the process of judging in distinct ways. From this account, sex role socializing experiences should yield gender differences, with women adopting an “other” orientation and incorporating concerns with equity, and with men prioritizing individual rights’ claims (Kennedy, 2003). Political science research on elites provides support for this account: a study of mayors found that women emphasized collegiality in their position, whereas men were more likely to adopt a hierarchical approach (Tolleson-Rinehart, 1991). Studies of legislators also report that women are more likely to be facilitators than men, and focus on compromise (Carey, Niemi, & Powell, 1998; Kathlene, 1994; Rosenthal, 2000), though they are not necessarily more bipartisan than their male counterparts (Chira, 2018).
In the context of judging, this account suggests that women are more likely to be consensus builders and work toward a compromise position: a premise supported in Boyd’s study on federal district court judges (Boyd, 2013). Conceptualizing trial judges as case managers, Boyd suggests that a female style of management promotes participation, collaboration, consensus building, and the inclusion of multiple voices in the decision-making environment (Boyd, 2013, p. 196). Her analysis finds that cases are more likely to settle if assigned to a female judge, and if a tort or civil rights case, settlement will occur more quickly than if assigned to a male judge. Haire and Moyer (2015) also find that women judges facilitate compromise on the U.S. courts of appeals. In their analysis, women opinion authors are more likely to write opinions that advocate for an outcome that represents the “middle ground” when compared to opinions authored by male judges.
After decades of research, including the sampling of studies highlighted above, with few exceptions scholars have largely found that the voting behavior of women and men on the bench is more alike than different. This large body of null findings is often attributed to homogenizing influences associated with legal training and shared socializing experiences that align with prejudicial careers (Guinier, Fine, Balin, Bartow, & Stachel, 1994; Kritzer & Uhlman, 1977) as well as norms and processes that underlie the “classical model of judging” that was created by men with laws written from a man’s standpoint (Solimine & Wheatley, 1995, pp. 908–911). There are limits to homogenizing forces: women judges who had divergent socializing experiences, especially during an era characterized by overt discrimination, demonstrate a decision-making pattern that varies from their male colleagues (Boyd, 2016; Moyer & Haire, 2015). Additionally, a few studies continue to document small gender-based differences in decisions in a few issue areas. These research findings argue for scholars to probe further the causal mechanisms underlying these relationships in order to reconsider the role of identity and gendered socializing experiences.
Research also suggests that individual differences in judging may be evident if scholars move beyond a dichotomous liberal–conservative conceptualization of decisions. Men and women on the bench appear to be different in their approach to the procedural dimensions of judging. As the presence of more women on the bench potentially shifts norms and shapes a court’s institutional practices, there is the potential for individual level variation to emerge. For example, women and men on the federal district court bench exhibited different policy-based voting behavior in those districts where women constituted a critical mass—a point that we explore further in “Gender and Court Composition.”
Gender and Court Composition
Another major area of inquiry in gender and the law has focused on how courts as organizations have responded to the influx of female judges. This institutional transformation has occurred across many different judicial contexts. For instance, when President Carter initiated his historic effort to change the composition of the federal bench (Slotnick, 1982–1983), very few women had ever been appointed to positions as U.S. district court or U.S. court of appeals judges, and none had been appointed to the Supreme Court. Before Carter took office, there had been only six women appointed to various district court judgeships (the earliest by Truman in 1949) and just two who had been appointed as circuit judges. By contrast, at the start of 2018, there were three women on the U.S. Supreme Court, and women made up about 34% of both appellate and district court judges on active status. The gender composition of the state court bench has followed a similar pattern. Although there is substantial variation across the states, in 2018, 33% of judges sitting on state courts of last resort were women. Worldwide, in democracies with a single high court, women make up an average of 23% of all judges (Thames & Williams, 2013, p. 66).
In all of these settings, women judges are an increasingly larger presence on formerly all-male courts. But how has this transformation affected the decision-making processes used by judicial institutions and, ultimately, the doctrine produced by these courts?
One stream in the research borrows intuitions developed in the legislative behavior literature about the concepts of critical mass and critical actors. Critical mass refers to how the proportion of minority groups within an institution affects the behavior of those individuals, as well as the behavior of the majority group (Dahlerup, 1988; Kanter, 1977). Frequently, this framework is used to determine what proportion of women is necessary in an organization for substantive representation for gender to take place. In the judicial context, most of this work has focused on appellate courts (Allen & Wall, 1993; Haire & Moyer, 2015; Johnson, Songer, & Jilani, 2011; McCall, 2008; Moyer, 2013), with some notable exceptions (Collins, Manning, & Carp, 2010). However, the judicial literature departs from the legislative research in testing for critical mass effects in a broad array of issue areas where men and women may hold different views, on average, or may have gendered experiences (e.g., sex discrimination). In federal appellate courts, Moyer (2013) finds that as mixed-sex panels are comprised more frequently, male and female judges were more likely to side with plaintiffs in civil rights cases; however, this effect is time bound and not seen in more recent cohorts of female judges. Using a sample of criminal cases from state supreme courts, McCall (2008) finds that female justices are more likely to cast liberal votes in search and seizure, juvenile, and domestic violence cases when there are more than 10% of women serving on the court. In the trial court setting, Collins, Manning, and Carp (2010) find that achieving critical mass within a district (equivalent to three women) has as strong an effect on criminal justice outcomes as ideology.
Additionally, studies have differed on how critical mass has been operationalized, with some using a percentage-based approach (McCall, 2008) and others, an interaction term to test whether the effect of gender composition is different for men and women (Collins, Manning, & Carp, 2010; Moyer, 2013). These differences in measurement can affect what conclusions are drawn. Categorical approaches to measuring critical mass (e.g., 10%, 20%, 30%) can be less sensitive instruments for detecting composition effects than continuous measures (Fenwick & Neal, 2001), and it can be difficult to calibrate categories so that they are neither too broad nor too narrow (Williams & Mean, 2004). Heterogeneity indices, such as the Blau index (Pitts, 2005), can be useful as indicators of overall diversity, though they may obscure differences in group composition. Williams and Mean (2004, p. 463) explain that a “group with two women and eight men is attributed the same score as a group with eight women and two men, yet theoretically it is plausible . . . that the two groups will have very different dynamics.”
Regardless of the measurement approach taken, when importing theories like critical mass from other institutional contexts, scholars should be vigilant in examining the underlying assumptions that come with those theories, particularly insofar as these drive the operationalization of key variables. Although a percentage-based approach may be appropriate in some judicial settings, the specification of “critical mass” should be sensitive to what impacts are being tested and what the underlying causal mechanism is. For courts in which judges sit with one another for every case and have chambers in the same building, a critical mass measure may look different than in other judiciaries where judges are dispersed over a larger geographic area or use a rotating panel system to decide cases. In what is currently the only systematic large-scale examination of women in judiciaries worldwide, Thames and Williams (2013) conceptualize women’s representation on the bench as a function of “contagion,” that is, a phenomenon that operates in relation to women’s representation in other political institutions and offices within the country. Additionally, future work should focus its attention on courts where women routinely outnumber men on the bench, usually in trial court settings, and investigate how judges’ experiences in these types of settings may affect their behavior as they move up into judicial settings that are more male dominated.
Appellate courts where rotating panels decide cases offer a particularly rich environment for studying the role of gender in small-group decision-making. In the U.S. courts of appeals, the random assignment of judges to three-member panels has led to a substantial body of research that investigates how the composition of these small groups leads to “panel effects.” In one line of scholarly inquiry on these effects, individual judges’ votes are theorized to move toward the votes of their colleagues on the panel (Fischman, 2015). In this view, dissent aversion and the potential for a whistleblower to attract upper court review are believed to contribute to this type of panel effect (Fischman, 2015). A contrasting view of panel effects suggests that judges respond to the presence of their colleagues, including instances when they are persuaded during panel deliberations (Boyd et al., 2010; Peresie, 2004). Research consistently finds support for gender-based panel effects in decisions raising claims of sex discrimination: male judges are more likely to support the plaintiff when seated with female (rather than male) colleagues (Boydet al., 2010; Farhang & Wawro, 2004; Peresie, 2004). Gender-based panel effects may also extend to other issue areas. In their analysis of immigration appeals, Gill, Kagan, and Marouf (2017) find that all-male panels (versus mixed-gender panels) treat male litigants more harshly than female litigants. This study and others suggest that the decision-making panel dynamics that are due to its gender composition may be qualitatively distinct from those that contribute to ideologically based panel effects. Despite the use of innovative empirical methods designed to flesh out the causal mechanisms underlying panel effects (Boyd et al., 2010; Fischman, 2015), further research is needed to evaluate these collective decisions.
Recent work by political psychologists may provide guidance for examining more closely the relationship between an appellate panel’s gender composition and its decision-making. One promising set of studies links deliberative contributions to both group composition (e.g., the relative number of women and men) and to decision rules (Karpowitz, Mendelberg, & Mattoli, 2015; Karpowitz, Mendelberg, & Shaker, 2012; Mendelberg, Karpowitz, & Oliphant, 2014). For instance, in groups with few women and that operate by majority rule (a setting that accurately characterizes many judiciaries), women experience more negative interruptions than men, limiting their contributions. Research on Supreme Court oral arguments provides support for this expectation, with male justices more likely to “talk over” their female colleagues (Jacobi & Schweers, 2017). Decision rules for the group may mitigate this dynamic. Adopting a unanimity rule reduced interruptions of token women within groups, a finding that has important implications for judicial reformers interested in improving gender equality (Karpowitz, Mendelberg, & Mattoli, 2015).
Some research also suggests that the makeup of a court with respect to gender can affect decision-making processes related to consensus on appellate courts. For instance, there is some evidence that, as individuals, female judges are more successful than their male colleagues in finding “middle-ground” positions (Lindquist, Martinek, & Hettinger, 2007). Drawing from comments made by female circuit court judges about the importance of collegiality and finding consensus, Haire and Moyer (2015) test whether there is a relationship between the presence of women within a court and dissensus. As the proportion of women in a circuit increases, there is a corresponding decline in the circuit dissent rate, though this effect is not seen until there are two or more women present (Haire & Moyer, 2015). More work remains to be done, however, investigating how the gender composition of a court affects agenda setting and caseload management as well as norms associated with other aspects of judging. Researchers need to do more to better specify the underlying causal mechanism, in terms of articulating precisely how women’s presence leads to changes in norms and practices of institutions. Here, in-depth case studies of personnel changes on formerly all-male courts can be of great assistance. In this respect, we note the conclusions of one recent assessment of the scholarly literature on bias and judging, which suggested the need for more macro-level research on the judiciary (Harris & Sen, 2018).
Along these lines, there is a growing body of work, both quantitative and qualitative in approach, about female judges as leaders. Using the concept of a critical actor, defined as individuals who act on behalf of women or minorities (Childs & Krook, 2006), two studies on the U.S. courts of appeals find evidence that court leadership by the circuit chief judge is related to substantive representation by judges within those courts (Haire & Moyer, 2015; Moyer, 2013). Oral histories, judicial biographies, and case studies like Kenney (2008) provide both telling examples of female leadership as well as leadership by men who championed and supported female judges and lawyers within the court. As alluded to in the previous paragraph, oral histories in particular can be leveraged for better theory building (e.g., Moyer & Haire, 2015). In the international context, the International Association of Women Judges (IAWJ) maintains video interviews with a range of female judges in a wide variety of court settings throughout the world, a resource that scholars should mine for insights on understanding gendered leadership in non-U.S. judicial institutions.
Beyond critical mass and critical actor theory, other literature points to conflicting expectations related to the increasing presence of women on a court. One school of thought predicts that increased diversity will lead to a variety of positive impacts on opinion content and doctrine (Page, 2007; Sunstein, 2003). Judiciaries staffed with both men and women should bring a wider range of views to the decision-making process, and as a consequence, legal opinions will be more thorough and provide more attention to issues than decisions produced by homogeneous groups of judges. Focusing on the points of law discussed in the majority opinion, one study found that opinions authored by white women seated with other women or racial minorities contained a significantly higher number of points of law than opinions authored by panels comprised of three white males (Haire, Moyer, & Treier, 2013). This optimistic view also suggests that mixed-sex courts may have advantages in terms of innovation in legal policy if multiple perspectives are brought to bear and deliberation is more thorough. One extension of this supposition is that other courts should more often follow precedent from mixed-sex courts compared to more narrowly written opinions from homogeneous panels.
By contrast, a second school of thought takes a more pessimistic view about the impact of gender diversity on judicial institutions and decision-making processes. Social psychologists and sociologists have documented links between stereotyped views about women and expectations of competency, observing that these expectations can undermine the ability of women to participate fully in group decision-making (Correll & Ridgeway, 2006; see also Martinek, 2010) and make men less likely to accept influence from women because of their perceived lower status (Pugh & Wahrman, 1983). These status beliefs unconsciously shape expectations about individual capability that marginalize the actor with the lower performance expectations and reinforce existing status hierarchies (Correll & Ridgeway, 2006, p. 31). For judges, these social processes may serve to diminish the contributions of women judges during deliberation (e.g., Karpowitz, Mendelberg, & Mattoli, 2015) and limit their influence in a variety of ways. In the context of opinion assignment, Christensen, Szmer, and Strich (2012) find that white women are less likely to be assigned to write majority opinions in state supreme courts than white men. Further research should explore whether female judges who do author majority opinions find their colleagues less receptive to their positions, leading male colleagues to be more likely to write a separate opinion. Of course, although status beliefs and the expectations of competence that extend from them are often diffuse (applied generally to all contexts), they can also be specific, varying depending upon the context (Ridgeway, 2011). For example, women may be perceived as more competent when undertaking “female-identified” tasks (e.g., Wagner & Berger, 1997). Along these lines, Farhang, Kastellec, and Wawro (2015) find that women judges are more likely to be assigned to write the majority opinion in sexual harassment cases. This is significant also because of other work showing that in these cases, panels with women were more likely to adopt a favorable legal rule for individuals alleging sexual harassment (Moyer & Tankersley, 2012). Although some work (Choi & Gulati, 2008) suggests that women judges are not at a disadvantage when it comes to citation of their opinions by other judges, much more work needs to be done to evaluate whether there is an “influence gap.” Methods developed to detect patterns in citation practices such as network analysis can provide good leverage for identifying potential areas of greater influence for women’s opinions.
Another area in which the negative view on diversification may apply to scholars of gender and courts is with respect to opinion content. As noted, political scientists have begun adapting approaches from social psychology and linguistics to operationalize various aspects of opinion content (Black, Hall, Owens, & Ringsmuth, 2016; Corley, 2008; Corley & Wedeking, 2014; Owens & Wedeking, 2012). Linguistic attributes have been found to correlate with power status differences, like those related to gender (Mulac & Lundell, 1994; Tausczik & Pennebaker, 2010). Following this, the addition of a woman or women to a court may contribute to an increase in language marked by negative affect. If differences in linguistic markers do emerge as a result of the composition of the group, are they static, or do they change over time as acclimation occurs among colleagues? Are they a reflection of influences by law clerks? Are they a function of other institutional characteristics, such as the selection and retention mechanisms for judges? With advances in linguistic software (e.g., Pennebaker, Mehl, & Niederhoffer, 2003), scholars can now process many opinions quickly to create datasets equipped to address these and other questions.
Multiple Identities and Intersectionality
Another developing area of research in gender and law emphasizes the multiple identities of women, drawing from scholarship about the intersection of gender and other traits. Rather than conceptualizing women’s experiences on a single axis or assuming that there is one universal “woman’s experience,” intersectionality scholars point to ways that traits like race, ethnicity, class, and sexuality intersect with gender (Crenshaw, 1998; Hancock, 2007; McCall, 2009). These intersectional identities often are associated with particular stereotypes and different locations within the power hierarchy. In this article, we highlight research that considers women’s multiple identities in the context of judicial selection and judicial behavior, identifying areas ripe for more exploration.
In the context of federal judicial selection in the United States, “diversity” in judicial appointments largely consisted of white women and African American men up until the Clinton Administration, when 15 African American women and five Latinas were appointed to the U.S. district courts and U.S. courts of appeals. President George W. Bush appointed eight African American women and 12 Latinas to the lower federal courts (far exceeding the number appointed by both his father and President Reagan). These changes were partly a function of the available pipeline of women in the legal profession but also reflected differences in appointment priorities across presidents. Clinton made an unprecedented commitment to diversifying his nominees (Goldman, Slotnick, Gryski, & Zuk, 2000), even exceeding the efforts of Carter (who had made great inroads in appointing women), whereas Reagan and George H. W. Bush prioritized ideological purity over judicial diversity (Haire, 2006; Haire & Moyer, 2015). George W. Bush benefited from an influx of more conservative women in the legal pipeline, which allowed him to appoint a more diverse group of women who also shared his ideological positions. Scherer and Miller (2009) observe that President George W. Bush nominated six women who were members of the Federalist Society, including one African American woman, Janice Rodgers Brown.
Under President Obama, the trend toward appointing more diverse women accelerated, with a number of new benchmarks being set. First, Obama appointed more Asian American women than all other presidential administrations combined: the first Asian woman to the U.S. courts of appeals (Jacqueline Nguyen), along with nine district court judges.2 He also appointed the first female Native American judge to the federal judiciary. LGBT advocacy groups also report record numbers of openly gay women being appointed to federal judgeships and in the District of Columbia. These appointments provide new opportunities for scholars to explore the impact of a more diverse judiciary on the public’s views toward the federal courts. For instance, Scherer and Curry (2010) suggest that increasing black representation on the federal courts may improve African Americans’ assessments of judicial legitimacy, while also undermining white support. Future research will need to examine whether this finding can be extrapolated to other groups. Moreover, scholars should extend existing research that shows how minority women take a different path to the bench than white women, white men, and minority men (Haire & Moyer, 2015); how do these new groups fare in comparison with their predecessors and male counterparts?
Within the state court literature, data limitations have resulted in a dearth of large-scale, systematic studies of minority women. This is unfortunate because lower level state courts (i.e., not state supreme courts) tend to have a much more diverse population of judges, including minority women. One notable exception is Jensen and Martinek (2009), who surveyed New York judges about their ambition for higher judicial posts. The researchers found that, in contrast to the political ambition literature, minority women judges actually expressed more upward ambition than white males. This suggests a different causal mechanism for progressive ambition in judicial elections than other types of elections, but needs more exploration in other judicial contexts. It also remains to be seen how lesbian, bisexual, and transgender individuals will fare in judicial elections and the appointment processes for state courts. The example of Oregon may prove to be a worthwhile case study. In 2006, Justice Virginia Linder became both the first LGBT elected statewide official in Oregon and the first openly lesbian justice on any state supreme court; after her first-year term on the court, Linder won re-election to a second term (Lomba, 2012). One research strategy could be to compare her experience to that of elected officials in nonjudicial offices, such as Annise Parker, the openly lesbian mayor of Houston who was elected for three consecutive terms.
Beyond studies of judicial selection, there remains the question of how diverse groups of women will translate their experiences into judicial behavior. Drawing from work on intersectionality in state legislatures (Bratton, Haynie, & Reingold, 2007; Orey, Smooth, Adams, & Harris-Clark, 2006; Reingold & Smith, 2012), there emerges a nuanced picture of how women of color choose to “represent”—one that may force scholars of judicial institutions to reconsider essentialist arguments about what “women” do as judges. For instance, Collins and Moyer (2008) find that minority women judges are more likely than white women, minority men, or white men to support the position of the defendant in criminal cases. Other work on the U.S. courts of appeals finds that African American female judges engage in substantive representation for gender, but not race; conversely, black male judges engage in substantive representation for race (Haire & Moyer, 2015). Because the role of party has been found to play an important role in substantive representation for gender (Poggione, 2004), scholars will need to consider the interplay of race, gender, and party and how these factors shape representational behavior in both appointive and elective court settings. In particular, more attention needs to be paid to distinguishing effects attributable to ideology and those stemming from distinct experiences as a woman and person of color.
As the LGBT movement celebrates some major legislative and judicial victories at the national level, particularly the Supreme Court’s decision in Obergefell v. Hodges, the pushback by religious groups opposing gay rights may present a new arena for examining how different groups of female judges respond to claims of discrimination. Moreover, now that the number of openly LGBT judges has begun to increase, it may soon be possible for research to test for substantive representation in cases involving LGBT discrimination, family law, and religious liberty claims, to name a few possibilities (Pinello, 2003).
Although large-N studies are valuable for producing generalizable conclusions, significant opportunities exist for case studies that can help to flesh out the causal mechanism underlying intersectionality and representation. For instance, Garcia-Lopez (2008) conducts interviews with Latina attorneys and found that among her subjects, it was commonplace for Latinas to be mistaken for interpreters and court reporters by other attorneys, judges, and court staff. These experiences are similar to anecdotes told by African American male attorneys, who report being frequently mistaken for criminal defendants when they appear in court (Rhode, 1994, 2011). How do such experiences affect an individual’s practice of the law or their actions as a judge? Here, oral histories of women can shed much light and suggest propositions for testing on a larger scale (e.g., Collins, Dumas, & Moyer, 2017). Even qualitative studies of limited jurisdiction courts can be of value, as these courts are often more diverse than more prestigious courts and serve as the “face” of the judiciary for many more litigants than courts of last resort.
Finally, another facet of women’s identities is generational; that is to say, experiences that are specific to particular groups of women may shape those women’s choices and behaviors in their legal careers in ways not seen with other groups. In this vein, Moyer and Haire (2015) argue that the overt discrimination faced by the first wave of female federal judges sensitized this group to claims of sex discrimination in ways not experienced by others. In an analysis of sex discrimination cases from 1995 to 2008, they find that differences between male and female judges are really a function of the voting behavior of women who attended law school in the 1950s and early 1970s, but that in more recent cohorts, the effect disappears. Looking forward, in the wake of the Great Recession and the subsequent collapse of the legal market, there is arguably a distinctive cohort of women and men graduating from law school, with more limited employment choices and unprecedented debt loads than previous generations. One possibility suggested by some scholars is that graduates of elite law schools will swallow up a larger and larger share of well-paying law jobs, making it more difficult for those who attend lower ranked schools (Dinovitzer, Garth, Sander, Sterling, & Wilder, 2004; Heinz, Laumann, Nelson, & Michelson, 1998; Merritt, 2015). Given that women may have to be twice as good as men to succeed because of gendered perceptions about competence (Ridgeway & Smith-Lovin, 1999; Swim & Sanna, 1996), this may severely hamper the opportunities of women from less affluent backgrounds. Indeed, a recent longitudinal study of the law school class of 2010 found that the Great Recession had exacerbated existing gender differences in job settings, with men much more likely to work in more lucrative private practice jobs and women more likely to work in government, public interest, or academic positions (Merritt, 2015). It is difficult to predict how this will shape the future composition of the judiciary, but it will be important to track how these developments impact women’s representation in the legal profession.
This article has selectively reviewed a large body of social science scholarship, from multiple disciplines, that has contributed to our understanding of gender and judging, each section highlighted promising directions and challenges for researchers. Here, the article concludes with some additional observations about trends in the field.
Assessments of research on women and politics emphasize the need for additional scholarship outside of the Western context (Paxton, Kunovich, & Hughes, 2007). The same observation can be made of research on gender and judging. Our selective review of the large number of studies focused on the U.S. context. Fewer scholarly works have considered gender and judging in the Western, non-U.S. context and even fewer empirical studies have focused on these questions in the developing world, particularly the Global South. One promising development has been an increase in the number of interdisciplinary and international organizations of scholars devoted to research on gender and law. Included among these is the Law and Society Association Collaborative Research Network (CRN) on gender and judging. This CRN facilitated a recent edited volume of 30 selections covering 19 countries that provides readers with a wealth of knowledge about gender and judging in a global context (Blizzard, 2014; Schultz & Shaw, 2013). As scholars build on these studies and others, attention given to how theories developed for the U.S. common law system of judging may, or may not, be relevant for understanding the role of gender in other nations (Grossman et al., 2015). Comparative research of nation-states with varying proportions of women in the judiciary will also shed light on issues surrounding critical mass and whether a majority of women on the courts results in shifts in norms and practices in the legal system. Judicial politics scholars face considerable obstacles in collecting comparative data. To address this challenge, there has been an increase in collaborative research that yields cross-national datasets available for scholarly use, including the High Courts Judicial Database.3
Issues surrounding data collection efforts are not limited to research outside of the United States, even within which records of processes in many state trial courts of limited jurisdiction (i.e., family courts, municipal courts, magistrates) are often unavailable. Case records of major trial courts, as well as biographical profiles of judges in state court systems, are often incomplete. Scholars will need to rely on triangulated methods to evaluate questions on gender and judging in these courts. At the other end of the spectrum, technological advances in computer text analysis offer the promise of analyzing efficiently vast amounts of text from federal court opinions and other electronic documents (Owens & Wedeking, 2012). As this review article has noted, the effects of judge gender on legal doctrine are only beginning to be systematically evaluated in studies of opinion content. By leveraging these technological advances, judicial scholars will be well positioned to explore the linguistic and psychometric properties of decisions written by women and men judges while also testing whether opinions produced by courts with more women are qualitatively different. As more judges and legal actors record oral histories and make them available through court historical societies, universities, or other archives, scholars have the opportunity to gather observations from the judges themselves about a variety of issues, including those associated with gender identity and socializing experiences. Qualitative approaches that draw on these oral histories and other judge interviews will yield new insights on the perspectives of men and women on the bench.
Increased demographic diversity on the bench will continue to fuel empirical research on gender and judging. As other types of diversity become more prevalent, empirical research that uncovers new patterns (or discovers no relationship) will facilitate theories that address how a judge’s gender identity, and potentially competing identities (e.g., race, ethnicity, class), affect decision-making. Increased diversity will also lead to much needed longitudinal research on institutional change. For much of its history, the U.S. legal system and laws have been described as male dominated; however, the legal system is moving away from majority male. In some countries and a few courts within the United States, there are shifts in the gender make-up of the judiciary with women occupying positions of leadership and constituting a majority. Research reviewed herein suggests that deliberations will change when women are leaders or outnumber men. As more courts become a female majority, how will this shift affect norms and decision-making practices? Will a female-majority court shift doctrine?
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1. Recent figures on women in the legal profession are from the American Bar Association’s Commission on Women which publishes an annual statistical profile, A Current Glance at Women in the Law: January 2018.
2. Jacqueline Nguyen was one of those district court judges; Obama appointed her in 2009 to the U.S. District Court for the Central District of California, then elevated her to a Ninth Circuit appointment in 2012.
3. Stacia L. Haynie, Reginald S. Sheehan, Donald R. Songer, & C. Neal Tate (2007) High Courts Judicial Database. The University of South Carolina Judicial Research Initiative.