Gender, judicial dissent, and issue salience: the voting behavior of state supreme court justices in sexual harassment cases, 1980–1998

Abstract

The importance of women on the bench and the influence of gender on decision making has garnered much scholarly attention. Based in large part on the belief that women will act as “representatives” of their gender, much of the literature attempts to determine if women in fact do support the pro-women position in judicial cases. However, because the literature assumes women will act in a prescribed manner given the opportunity, the literature fails to question the willingness of women justices, given the political context of a case, to fulfill this responsibility. I propose that decision making by female justices on state supreme courts is dependent not only on the attitudinal predisposition women may have in support of the pro-women position in gender-sensitive judicial cases, but also upon the political and institutional context of any given case. Accordingly, I examine the voting behavior of state supreme court justices in sexual harassment cases decided between 1980 and 1998. I find that women justices do support the pro-women position in sexual harassment cases prior to 1992 and the Anita Hill–Clarence Thomas sexual harassment Senate hearings. However, after 1992, there is no significant difference in the voting behavior of male and female justices suggesting the increased salience of the sexual harassment issue influenced judicial votes.