Female Justices Research Articles

Well said!: Professional norms and female justices' evaluation of lower court opinion text

AbstractSupreme Court justices' opinions shape the contours of case law binding throughout the United States. Importantly though, justices do not write their opinions de novo. Rather, they routinely draw on lower court judges' opinion language when crafting opinions. In doing so, justices stretch the substantive impact of lower court judges' reasoning beyond the boundaries of their circuits. However, justices do not draw equally on lower court opinions; while previous work often ties this to judges' professional qualifications, we draw on work stressing female supervisors are more likely to enforce professional norms on subordinates. We argue female justices are more likely to draw upon lower court opinions complying with professional norms because of greater implicit norm internalization over the course of their careers. We test this proposition with a quantitative textual analysis of the justices' opinions and lower court opinions. We find support for our argument. This raises normative concerns about the overall impact of greater judicial diversity.

Equal Representation of Women in the Superior Judiciary: A Comparative Analysis between Pakistan and the United Kingdom

Abstract Pakistan does not have a senior judiciary that is representative of its population. Women are under-represented. There had never been any female Justices of the Supreme Court of Pakistan until January 2022, when Justice Ayesha Malik was appointed as the first female Supreme Court judge. Although there is no constitutional bar to appointing women to be judges, the system for appointing judges is based on outmoded notions of seniority that are hostile to women’s desire for career progression. The United Kingdom (UK) provides a valid comparison since the legal system of Pakistan is based on English law. The UK has been marginally more successful in promoting female judges. The UK features a more open and transparent system, from which Pakistan should consider borrowing elements, specifically, an independent Judicial Appointments Commission (jac). The UK model suggests that more positive change may occur in the future. A quota system may be effective in increasing appointments in Pakistan, although this may create its own difficulties. More fundamentally, building into the appointments process the recognition that women may have different social responsibilities than men may also facilitate change.

The Impact of Female Leadership in Collegial Courts on Time to Render Merits Decisions: Evidence from the Norwegian Supreme Court

What is the effect of gender on the deliberative process of judging? Drawing on previous research on female leaders’ inclination to foster a more inclusive and collaborative decision-making process, we argue that decision making takes more time in a collegial court when female justices preside over decisional panels. Analyzing an original data set on cases decided by the Norwegian Supreme Court between 2008 and 2019, we find that when a woman is the presiding justice, the duration of case disposition time increases. This effect, however, persists for only eight days. Our finding suggests that institutional practices take effect over gendered effects.

Beyond Consensus: Gender, Chief Justices, and Leadership on State Supreme Courts

ABSTRACT Previous research on differences in male and female leadership attribute consensus formation to female leadership styles. However, I argue that consensus in the context of chief justice leadership is more akin to male forms of leadership. Proceeding from Meier and O’Toole’s theory of public management, I argue in this article that female chief justices should value consensus less than other duties and responsibilities. I test hypotheses using a survey of current and former state high court justices. The results show that female justices greatly devalue consensus and are more likely to place importance on interactions with state legislatures.

Comparative Oral Argument: What Australia Can Teach Us About the United States Supreme Court (and Vice Versa)

This Article provides a rare comprehensive empirical assessment of oral argument outside of the United States. Drawing on a novel data set of nearly 1 million speech episodes at oral argument in Australia’s apex court, the High Court of Australia, over nearly 25 years from 1995–2018, we are able to compare patterns of judicial behavior found in the U.S. Supreme Court to a comparable liberal Western democracy with a long tradition of judicial independence. There are a number of highly significant institutional differences in the Australian context as compared to the U.S. Supreme Court — notably: a Chief Justice with additional power at oral argument; unlimited options for the length of argument, which are typically measured in days; and variable panel sizes. Despite this, we find overwhelming evidence that, contrary to jurisprudential orthodoxy, Australian High Court justices engage in substantial and significant judicial advocacy on behalf of the side of the case that they ultimately support. It also finds strong support that, as has been identified at U.S. Supreme Court oral argument, Australian justices are more active when in opposition to a dominant ideological regime or when facing a likely failure to convince their colleagues in the case at hand. That is, both Australian and American justices are more active when they find themselves on the losing side of a case or of a more general ideological era — another recognized manifestation of judicial advocacy. In addition, numerous other factors that have been shown to be highly influential in the American context are also shown to be powerful in the Australian context, most notably judicial ideology, gender, and experience (which can counteract one another in the case of more senior female justices). This suggests that striking institutional differences can impact oral argument and make arguments look very different, but we can nonetheless discern underlying patterns of judicial behavior that can be recognized as strategic advocacy. All this suggests that neither system is “exceptional” — judicial strategy may simply be part and parcel of having a strong independent judiciary.

Oral Argument in the Time of COVID: The Chief Plays Calvinball

In this Article, we empirically assess the Supreme Court’s experiment in hearing telephonic oral arguments. We compare the telephonic hearings to those heard in-person by the current Court and examine whether the justices followed norms of fairness and equality. We show that the telephonic forum changed the dynamics of oral argument in a way that gave the Chief Justice new power, and that Chief Justice Roberts, knowingly or unknowingly, used that new power to benefit his ideological allies. We also show that the Chief interrupted the female justices disproportionately more than the male justices and gave the male justices more substantive opportunity to have their questions answered.This analysis transcends the significance of individual cases. The fact that the Court experimented with telephonic oral argument, the way it did so, and how the practice could be improved are all issues of profound national importance. The new format had the potential to influence the outcome of cases that have broad national significance, to shift norms of equality and transparency at the Court, and more generally to affect judicial legitimacy. If the Court favors certain parties or certain ideological camps by its choice of forum in a time of crisis, then that will undermine not only the Court’s claim to legitimacy but it also raises doubts whether any of our national institutions have the capacity to adapt to crises more generally.

Gender, Ideology, and Dominance in Supreme Court Oral Arguments

ABSTRACT Gender bias in political discourse has been demonstrated in many settings, including the US Supreme Court. We investigate the effects of ideology and gender in verbal interactions during Supreme Court oral arguments. We theorize that all justices possess unconscious gender schemas that lead them to speak more during presentations by women but that liberal and female justices likely have conscious egalitarian values that diminish the manifestation of gender schemas. We find that conservative justices speak more when female lawyers are arguing but that liberal justices show no such effect, suggesting that consciously held attitudes can mitigate the expression of unconscious gender schemas.

Power Dynamics in Supreme Court Oral Arguments: The Relationship between Gender and Justice-to-Justice Interruptions

We examine how gendered norms of professional speech affect the ability of female Supreme Court justices to exercise power in oral argument. In this unique dialogue setting, the justices vie for chances to speak. We argue that gender is an embedded characteristic of oral arguments, and implicit assumptions about gender roles lead to disparities in the balance of authority on the Court. Our results show that women are interrupted more than men, which compromises their ability to achieve their goals during oral arguments. This inequity is compounded by the fact that interruptions of female justices by male justices are associated with lower word counts for the interrupted female justices in ways that interruptions by other women are not. The results corroborate conversational and power dynamics previously explored by sociolinguists, but also extend those findings to accommodate the characteristics of more formal, high-stakes discussions involved in the creation of public policy.

Protection Order Policy-making in the U.S. State Courts of Last Resort from 1980 to 2019

This article examines the development of policy designed to target intimate partner violence, or domestic violence, through the use of protection orders in the U.S. state courts of last resort, or the state supreme courts, from 1980 to 2019. The authors’ study shows that the American state supreme courts are decidedly supportive of female protection order litigants throughout the period studied. The model also highlights the importance of state government ideology, percentage of female justices, and state laws that ban gender hiring discrimination on state supreme court decision-making in these cases.

Status characteristics and their intersectionality: majority opinion assignment in state supreme courts

ABSTRACT We test whether justices’ traits – race, gender, age, previous judicial experience, education, and tenure – are associated with opinion assignment patterns as suggested by status characteristics theory. Female justices were more likely to be asked to write the majority opinion, particularly if the case raised a “women’s issue.” In complex cases, however, both female and African American justices were less likely to be selected to write the majority opinion. Extending intersectionality perspectives, advances in age were associated with a decreased likelihood in women and African American justices receiving the assignment, though at distinct age ranges.

The Unheard Female Voice

The Unheard Female Voice

The Role of Gender Norms in Judicial Decision-Making at the U.S. Supreme Court: The Case of Male and Female Justices

Although still a minority, the growing number of women on both the Bench and at the Bar of the U.S. Supreme Court has important implications for judicial decision-making and successful advocacy at the Court. Research in judicial behavior generally focuses on vote direction and the presence of female attorneys in a case. We offer a more nuanced account of how gender impacts both attorney success and judicial decision-making by drawing on work in social and political psychology and utilizing quantitative textual analysis to explore the tension between masculine norms of behavior that are valued in the legal profession and feminine norms of behavior that are expected of women, but devalued in the legal profession. Based on the Court’s long-standing disdain for emotional arguments, we examine how the emotional content in 601 party briefs shapes the Court’s majority opinions. Our results indicate that male justices evaluate counsel based on their compliance with traditional gender norms—rewarding male counsel for cool, unemotional arguments and rewarding female counsel for emotionally compelling arguments. However, we find no evidence that gender norms shape the opinions of female justices. Given that the justice system is supposed to be “blind,” our results highlight the durability of gendered expectations and raise questions about the objectivity of judicial decision-making.

Family Matters: Justice Gender and Female Litigant Success in Family Law Cases in the Supreme Court of Canada

ABSTRACTAs the first empirical study of family law cases at the Supreme Court of Canada, this study explores potential factors that lead to female litigant success in family law cases. This study seeks to further our understanding of areas of law that, in particular, impact women and families. Analyzing the universe of decisions in family law cases decided by the Supreme Court of Canada from 1982 to 2008, I find support for justice gender affecting female litigant success in family law cases. The results suggest that female justices tend to support female litigants more often than their male colleagues, and that certain legal factors are also determinants of Supreme Court decisions in family law cases. Female litigants enjoy high rates of success at the Supreme Court of Canada, with both justice-specific and case-specific factors as driving forces in decision-making.

Echoes from a Gendered Court: Examining the Justices' Interactions During Supreme Court Oral Arguments

Supreme Court oral arguments are the only publicly scheduled opportunities for the Justices and advocates to directly engage in discussions about a case. There are few rules to regulate these conversations. Within this unique setting and due to the lack of argument structure combined with the limited time allotted to each argument, the Justices vie for chances to speak, sometimes at the expense of utterances from other Justices. In this Article we examine how the Justices’ genders dictate much of the Justices’ interactions and ultimately the power structure of oral argument.This Article shows how gender is an embedded characteristic of the oral arguments and how the Justices’ appropriations and perceptions of gender roles create disparities in the balance of authority on the Court. The Article’s analysis shows a major gap between male Justices’ interruptions of female Justices and female Justices interruptions’ of male Justices during oral arguments. After discussing why this is problematic, the Article offers suggestions for how the Court can reduce these interruptions through institutional reforms. The Article’s analyses corroborate conversational and power dynamics previously elucidated by sociolinguists, but also extend those findings to the insular environment of the United States Supreme Court.

The Day the Laughter Died: With the Passing of Justice Scalia, Who Becomes the New 'Court Jester' and with a Possible Female President, How Might a Majority of Female Justices Change the Court?

This article presents an overview of the Supreme Court’s humor for the 2015-2016 term, discusses the humorous and serious developments resulting from Justice Scalia’s death, and also considers the potential gender shift the Supreme Court faces.

The Women and Men of Harvard Law School: The Preliminary Results from the HLS Career Study

There is widespread consensus that the legal profession stands at an important inflection point. Traditional models of professional organization, practice, and education are under increasing pressure to adapt to important changes in the environments in which lawyers work. At the same time, these same forces make the profession’s commitment to its traditional ideals of equality and the rule of law more relevant and important than ever.The current status of women in the legal profession mirrors this complex duality. On the one hand, the number of women entering the profession has increased dramatically in recent decades, and women lawyers can now be found in leadership positions in virtually every major legal institution in the country, including three female justices on the United States Supreme Court. And yet, the percentage of women in these top positions remains far below their representation in the profession, even when adjusted for the fact that women did not begin to enter legal practice in significant numbers until the 1970s. To make matters worse, even women who have achieved important career success appear to be leaving their prestigious positions - and the profession as a whole - in alarming numbers.It is against this background that we offer this Preliminary Report on The Women and Men of Harvard Law School. The Preliminary Report presents the results of the Harvard Law School Career Study (HLSCS), conducted by the school’s Center on the Legal Profession (CLP). Begun with a generous grant from a visionary group of women alumnae in connection with the 55th celebration of the graduation of the school’s first female students in 1953, the study seeks to deepen the understanding of the career choices made by HLS graduates by providing for the first time systematic empirical information about the careers trajectories of graduates from different points in the school’s history. In this Preliminary Report, we offer a first look at the Study’s findings about the salient similarities and differences between the careers of the school’s female and male graduates.

Barrister gender and litigant success in the High Court of Australia

We examine the relationship between gender of the barrister and appeal outcomes on the High Court of Australia. We find that an appellant represented in oral argument by a female barrister, opposed to a respondent represented in oral argument by a male barrister, is less likely to receive a High Court justice's vote. However, we also find that the appellant disadvantage of having a female barrister present oral argument is (partially) offset in the case of liberal justices and on panels having a higher proportion of female justices. The extent to which the disadvantage is offset, and potentially turns from being a disadvantage to an advantage, depends on the degree to which the justice is liberal and the proportion of female justices on the panel.本文探讨律师性别与诉讼结果之间的关系。我们发现这个过程并不对称。如果是由女律师上诉，而辩方是一个或一个以上男性律师，那么性别就是一个因素。不过并不存在相反的情况。我们具体发现，如果诉方是一个女律师，辩方为一男律师，诉方就不大可能获得最高法官的赞同。不过，我们还发现，如果法官具有自由主义精神，如果法官团的女性比例较高，那么女律师的不利情形就有可能被（部分地）抵消。被抵消的程度取决于法官自由精神的强弱，和法官团女性比例的大小。

Women's Representation in the Highest Court: A Comparative Analysis of the Appointment of Female Justices

Women's Representation in the Highest Court: A Comparative Analysis of the Appointment of Female Justices

Gender and the U.S. Supreme Court: An Analysis of Voting Behavior in Gender-Based Claims and Civil-Rights and Economic-Activity Cases

Although several studies examine the influence of gender in the U.S. Supreme Court, research is still unsettled regarding the overall influence of gender in the voting behavior of Supreme Court justices. Employing data from Harold Spaeth's U.S. Supreme Court Databases, I systematically examine the extent to which gender influences individual Supreme Court justices' voting decisions across four issue areas. I find that although gender does not appear to influence the voting behavior of Supreme Court justices in civil-rights cases, male and female justices vote significantly differently in cases involving sex discrimination, reproductive rights, and economic activity.

Equal Protection Under the Law: Do Female Justices have a Different Voice?

As women take on a continuously larger role in the legal field, it has become tremendously important to study and understand the impact women are having on the judicial system. This work explores the role of women in the judiciary. Specifically, I examine the Supreme Court of the United States to find out whether women’s jurisprudence differs from that of their male colleagues. For this paper, I limit my examination to cases involving equal protection under the law. The theory I employ is that of Carol Gilligan, who argues that across many realms, women have a uniquely different voice than men (1982). Through a quantitative analysis of 49 cases dealing with issues of equal protection under the law, I show that Gilligan’s theory helps us understand how cases are decided in the United States Supreme Court. Additionally, I show how the “Different Voice” model improves upon existing models of judicial decision making by Lee Epstein, Jeffrey Segal, and Harold Spaeth. This paper expands current gender and politics literature, which had previously used Gilligan’s insights to examine U.S. state legislatures, by analyzing decision making in the Supreme Court. This paper thus illustrates that women, due to their unique life experiences, have a different understanding of the law in regards to equality and equal protection under the law.