Judicial Diversity 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.

Trading Diversity? Judicial Diversity and Case Outcomes in Federal Courts

Trading Diversity? Judicial Diversity and Case Outcomes in Federal Courts

U.S. District Court Judicial Diversity: The Impact of Race and Sex Composition on Sentencing Outcomes at the District Level

The demographic diversity of the federal bench has emerged as a salient issue for the American public. Although research has examined the impact of judges’ race and sex on various court outcomes, including sentencing, for several decades across different levels of courts, findings remain mixed. Race and sex diversity of the U.S. District Courts has increased in recent years, coinciding with the transition from mandatory to advisory sentencing guidelines. The current study examines the impact of changes in the race and sex composition of federal trial courts on district-level sentencing outcomes for different demographic groups of offenders. The findings provide evidence that the race and sex composition of the District Courts impacts sentencing outcomes in both expected and unexpected ways.

Confirm Judge Irma Carrillo Ramirez to the Fifth Circuit

The United States Senate must expeditiously confirm United States District Court for the Northern District of Texas Magistrate Judge Irma Carrillo Ramirez, who has definitely earned appointment to the United States Court of Appeals for the Fifth Circuit and will become the appellate court’s initial Latina member. This regional circuit effectively resolves substantial appeals, enjoys a large judicial complement, and certainly possesses a reputation as the nation’s most conservative appellate court. Ramirez, whom President Joe Biden nominated in mid-April, decidedly provides remarkable gender, experiential, ideological, and ethnic judicial diversity and has rigorously served as a Magistrate Judge and Assistant United States Attorney in the Northern District of Texas for practically three decades. The jurist has excelled in law’s upper echelons since 1991. The post that Ramirez will occupy has now been empty for more than one year. Therefore, the Senate needs to promptly confirm the highly qualified, mainstream nominee.

A Short History of Judicial Diversity

Abstract Judicial diversity is a priority without priority. While few would argue, openly at least, against a more diverse judiciary in principle, there is still some way to go to make it a reality. And yet, despite the slow rate of progress, reigniting conversations about diversity may seem unwise in the current political moment, raising the question of whether those seeking to achieve a truly diverse judiciary have anywhere (new) to go. We seem to have reached an impasse. This article brings the insights of feminist legal history to bear on arguments for judicial diversity. Drawing on original archival research, it focuses on the establishment of the Industrial Court in 1919 and tells, for the first time, how there came to be statutory requirement for women’s presence on the court. It argues that the quality argument for diversity—that a court is stronger and its decision-making better for the inclusion of women among its members—was central to this success. It goes on to argue that in unsettling deep-seat assumptions particularly around arguments for the imposition of quotas, the history of the Industrial Court, and feminist legal history more generally, offers a way out of the impasse and a reason to keep talking about judicial diversity. This is important. For it is only by doing so that we have any chance of securing a judiciary that is truly diverse.

Unveiling India's Supreme Court Collegium: Examining Diversity of Presence and Influence

AbstractSince 1993, judges in Indian higher judiciary are appointed by a collegium of judges in the Supreme Court headed by the Chief Justice. Academic scholarship on judicial diversity in India has failed to address two important issues arising out of this drastic development. Firstly, while the issue of diversity in the Indian higher judiciary has received limited attention over the years, there has been no attempt to examine the composition of the Supreme Court collegium which controls appointments to the higher judiciary. Secondly, while patterns of appointments have been analysed in relation to different Chief Justices and also the collegium vis-a-vis the executive, no attention has been paid to the specific collegiums which are responsible for the selection of judges. This has allowed the members of the collegium to exercise their power away from public scrutiny.This article unveils the group of judges who have exercised influence as members of the collegium and how this influence has been distributed amongst judges in terms of their social and professional background. Findings in this article show that membership of the collegium and influence within the collegium has not had representative diversity.

Women’s equal representation in the higher judiciary: a case for judicial diversity in India

ABSTRACT Diversity is an inherent feature of democratic nations. However, in many democracies such as India, the judiciary does not reflect the rich diversity of the country. Most judges in the Supreme Court and High Courts in India are cis-gender, upper-caste men. This homogenises the perspective on law and justice. Women judges and lawyers are faced with structural barriers such as gender stereotypes, discrimination, harassment, and insufficient institutional and infrastructural support. Additionally, caste, class, sexuality, and religious identity are some factors that create multiple axes of oppression to contend with. Through a critical examination of various feminist lenses, we highlight the systemic and implicit biases that lead to disproportionately low numbers of women judges. We then recommend institutional reforms that could facilitate the creation of a more diverse higher judiciary in India.

Racial and ethnic disparities in sentencing: What do we know, and where should we go?

AbstractStrong evidence of racial and ethnic disparities has been documented in recent government‐led reports, suggesting the presence of discrimination in sentencing, with Black and ethnic minority defendants being systematically sentenced more harshly than their white counterparts. However, we still do not know how these disparities come about as most of the sentencing research has relied on quantitative designs focused on documenting the problem, rather than exploring its causes. In this exploratory study we use qualitative interviews with criminal law barristers to explore the different mechanisms that may give rise to these disparities. From our interviews we identified two predominant causal mechanisms: the differential consideration of mitigating and aggravating factors and indirect discrimination arising from defendants’ socio‐economic backgrounds and over‐policing. Based on these findings, we suggest effective strategies such as explicitly listing social deprivation as a mitigating factor in the sentencing guidelines and increasing judicial diversity for redressing these disparities.

Judicial diversity and sentencing disparity across U.S. District Courts

PurposeMuch of the prior literature examining the impact of judge race and sex on case-level sentencing outcomes remain mixed. There is a lack of research investigating how the composition of the judiciary influences sentencing. The current study attempts to fill this gap and examines the influence of the race, sex, and political composition of U.S. District Courts for two offense categories. MethodsUsing data from the United States Sentencing Commission Monitoring of Federal Criminal Sentences and the Federal Judicial Center Biographical Directory, district-level sentencing outcomes for drug and economic offenders processed between October 1, 2007 through September 20, 2016 were analyzed. ResultsResults indicate that judicial racial composition influences the percentage of economic cases sentenced to prison and average sentence length for both economic and drug cases, but in opposite directions. Political composition impacted the percentage of economic cases sentenced to prison while gender composition was not found to be a significant predictor. ConclusionsThese findings highlight that in order to obtain a clearer picture of how judicial racial composition impacts sentencing, it is necessary to examine offense categories separately and beyond case-level outcomes.

The Impact of Racial Representation on Judicial Legitimacy: White Reactions to Latinos on the Bench

Despite evidence that racial diversification has increased support for the judiciary, political scientists know little about the heterogeneous effects of diversification across different population segments. Previous research illustrates that including Black judges increases judicial legitimacy among the Black population, but it decreases the legitimacy of the courts among the White population. We expand on this knowledge by examining the impact of adding Latinos to the bench. Our survey experiment compares White respondents’ perception of the courts based on differing levels of Latino representation in the ruling panel. Does descriptive representation in the racialized issue area of immigration signal fairness and legitimacy to White respondents? Or does the inclusion of Latino jurists in immigration cases trigger racial animosity and decreasing support for the courts? We find that when the court rules against the White respondent’s preference, they tend to penalize all-White judicial panels that rule against the perceived interest of Latinos. Additionally, we find that when presented with a Latino majority panel, White respondents who disagree with the ruling are more likely to punish the anti-Latino decisions as their levels of group consciousness increase. Ultimately, our findings illustrate how judicial diversity may affect the countermajoritarian capacity of the judiciary.

Values diversity in the United Kingdom Supreme Court: abandoning the ‘don't‐ask‐don't‐tell’ policy

AbstractThe case for greater judicial diversity has generally been constructed in terms of the need to appoint more women and those from minority ethnic groups. This article shifts the focus from demographic to cognitive diversity. Drawing on new insights and methodologies from the behavioural sciences on judges’ personal values and analysing the relationship between demographic diversity and values diversity, it sets out the case for the potential benefits of values diversity on the United Kingdom Supreme Court. The article argues that values are already implicitly taken into account in judicial appointments and challenges the claim that seeking values diversity among the Justices would inevitably lead to a United States‐style partisan political court. It proposes greater openness around values in the judicial appointments process to make explicit what is currently tacit and to lift the judicial values blackout, which has given rise to a ‘don't‐ask‐don't‐tell’ approach to the role of Justices’ values in decision making.

‘I beg to differ’: Are our courts too agreeable?

If dissenting judgments perform a valuable function in the administration of justice, too little dissent may indicate that the administration of justice is not reaping the benefits of dissent. South Africa belongs to the common-law tradition, which has always allowed dissenting judgments. The civil-law system traditionally did not, and this is still the position in many countries. In the modern era, considerations of transparency and accountability favour the disclosure and publication of dissenting judgments. Although they can play a role in the development of the law, their most valuable function is to improve the quality of judicial output by requiring majority judgments to confront the dissenting judgments’ reasoning. Factors which may affect the extent of dissent in appellate courts include case complexity and control over rolls; panel sizes; judicial diversity, personality and turnover; court leadership; research resources; modes of judicial interaction; and protocols on the timeliness of judgments. Data on dissent in South Africa’s Constitutional Court, Supreme Court of Appeal and Labour Appeal Court, as well as in the United Kingdom, Australia, Canada and the United States, suggest that there is less dissent in our intermediate appellate courts than might be expected. Changes in work procedures could yield a healthier pattern.

Assessing President Obama's Appointment of Women to the Federal Appellate Courts

Abstract A major legacy of the Obama presidency was the mark he left on the federal courts with respect to increasing judicial diversity. In particular, President Obama's appointments of women to the federal judiciary exceeded all previous presidents in terms of both absolute numbers and as a share of all judges; he also appointed a record-setting number of women of color to the lower federal courts. In this Article, I take an intersectional approach to exploring variation in the professional backgrounds, qualifications, and Senate confirmation experiences of Obama's female appeals court appointees, comparing them with George W. Bush and Bill Clinton appointees. These data reveal that women of color appointed by Obama differ from both white women and minority men in terms of ABA ratings, the types of professional experiences they bring with them, and whether they were confirmed by a roll call vote.

Diversity, Dissent and Representation: Lessons From The First Minority Judge in the Israeli Supreme Court

This paper seeks to enrich existing empirical research on substantive representation in the judicial system by exploring a case study of the Honorable Justice (retired) Salim Joubran, the first ethnic-minority judge appointed to the Supreme Court of Israel. By employing a dual methodology of qualitative discourse analysis and dissenting quantitative studies, the study investigates when, why and how he dissented in controversial cases, which are defined as cases that resulted in non-unanimous votes. The study shows that a quantitative study on dissenting opinions of a minority judge alone did not provide comprehensive conclusions. The complementary qualitative discourse analysis shows that in cases that challenged state actions that impacted his social group, Joubran employed distinct strategies and reasoning that are akin to feminist judgments approach. Hence, the study adds to existing research on judicial diversity indicating that women and ethnic minorities judges not only share common challenges but might also operate similar reasoning strategies. In light of these insights, the study calls for employing the combined qualitative and quantitative methodology on examining judgments focusing on dissenting opinions of women and ethnic minority judges as it offers a complex understanding of substantive representation and provides answers regarding the socio-legal effects of group affiliation on judgments.

Hidden depths: diversity, difference and the High Court of Australia

AbstractThere is a growing international emphasis on the importance of diversity in the judiciary and the impact of the individual in decision-making. However, it can be a challenge to gain insight into the individuals who sit on the bench. For instance, there is limited official information about the individuals who sit on the High Court of Australia. One of the rare glimpses provided by the justices themselves is their judicial swearing-in speech. Drawing on a case-study of the swearing-in speeches of High Court justices sitting between 2008 and 2016, this paper illustrates how these speeches can illuminate key demographic information about the judiciary, as well as facets of the individual rarely explored in studies of judicial diversity: personality and values. This study demonstrates how swearing-in speeches can assist with filling information gaps about judicial diversity, and so extend debates about judicial selection.

Diversifying the bench: Applying social cognitive theories to enhance judicial diversity

AbstractWhite men remain overrepresented in the American judiciary (i.e., the bench) despite increasing demographic diversity among law students and lawyers. Augmenting efforts to tackle systemic barriers, a social cognitive process model integrating Goal Congruity and Cultural Mismatch Theories to partially explain why women, first‐generation, and underrepresented racial minority (URM) lawyers are less likely to pursue and thrive in judicial roles was proposed. The unexplored misalignment between the goals and values typically endorsed by eligible underrepresented judicial candidates and their perceptions of judgeship was addressed. Specifically, women, first‐generation, and URMs tend to endorse primarily communal/interdependent goals and values, while judgeship is viewed as a stereotypically agentic/independent profession. Thus, judicial diversity could be enhanced by (1) highlighting role attributes that are aligned with communal/interdependent values and (2) increasing appreciation for existing judicial communality/interdependence. It was concluded by providing hypothesized interventions to target key psychological mechanisms along the “leaky pipeline” to the judiciary.

Women “doing” the judiciary: rethinking the justice argument for descriptive representation

ABSTRACT In this paper, we explore how political scientists can improve the study of gender diversity in the judiciary by drawing on the normative and theoretical literature on representation generally, and on descriptive representation specifically. In particular, we examine an undertheorized argument within the literature on descriptive representation, namely, the justice argument. Using Nancy Fraser's discussion of two justice frameworks, specifically, the recognition and redistribution frameworks, we argue that political scientists should evaluate the justice effects of a diverse judiciary using multiple conceptions of justice. In this way, we use normative theory to generate new research directions in the study of judicial diversity.

Group Selection and Opportunities for Gender Diversity in the Judiciary

ABSTRACTIn the legislative context, there is a persistent empirical relationship between party-list proportional electoral systems and higher levels of gender diversity in office. I apply the logic of party-list selection to the judicial context and argue that the selection of judges as pairs or in groups may facilitate the process of gender diversification on courts by making it easier – or at least more likely – for observers to notice and be critical of gender disparity in judicial selection. Evidence from a survey experiment fielded in the United States demonstrates that observers are more likely to notice and are more critical of gender homogeneity when judges are selected as a group rather than one-by-one. These micro-foundations demonstrate that the logic of party-list PR in the legislative context may also apply to the judicial context, suggesting that one way to improve prospects of judicial diversity could be re-structuring the timing of judicial turnover.

Appointing Arab Judges to the Courts in Israel, 1948–1969

This article unveils a virtually unknown chapter in the history of judicial diversity in Israel. During its first 20 years of existence, between 1948 and 1968, only three Arab judges were appointed. Then, within two years, between 1968 and 1969, Israel appointed three additional Arab judges. Two interconnected changes account for this small increase in judicial diversity. First, in the 1960s, the Arab legal elite began to exert pressure on Israeli officials to appoint Arab judges. Second, perhaps partly due to this pressure, the Judicial Selection Committee made having a diverse judiciary a top priority. This historical example teaches us that without outside pressure, the Judicial Selection Committee does not look on diversity as an important consideration, using the merit system of appointment as an excuse for its failure. Indeed, up to the present day, the Israeli judiciary has relatively few Arab judges.

Judicial Diversity in France: The Unspoken and the Unspeakable

Despite the importance of judicial diversity for litigants and the broader public, no previous study has examined this issue within the French judiciary. This article begins to fill this gap by using original, qualitative data that shed light on judges’, prosecutors', and other legal actors' discourses on racial, ethnic, and sexual diversity. Its main contribution is to show that these legal professionals deploy three strategies—linguistic, institutional, and geographic—to dodge or downplay the relevance of race, ethnicity, and sexual orientation. The first, linguistic, form of avoidance lies in refusing to name and discuss race and ethnicity explicitly; the second, institutional, in denying that the judiciary has a diversity problem or that the problem lies within its power; and the third, geographic, consists in relegating the issue of diversity to distant places—the United States and overseas France. The article concludes by discussing key directions for future research.