Gender Norms in Judicial Decision-Making at the U.S. Supreme Court

Gender Norms in Judicial Decision-Making

  • Research Focus:
    • Examines how gender impacts attorney success and judicial decision-making at the U.S. Supreme Court.
    • Analyzes the tension between masculine norms valued in the legal profession and feminine norms expected of women.
    • Utilizes quantitative textual analysis to explore emotional content in party briefs and its influence on the Court’s majority opinions.

Key Findings

  • Male justices evaluate counsel based on compliance with traditional gender norms.
    • Reward male counsel for cool, unemotional arguments.
    • Reward female counsel for emotionally compelling arguments.
  • No evidence suggests gender norms shape opinions of female justices.
  • Highlights the durability of gendered expectations and raises questions about the objectivity of judicial decision-making.

Background

  • Historically, women were excluded from the Bench and Bar due to perceived inability to handle the legal profession's rigors.
  • Women are significantly outnumbered by men at the Bar and less successful in advocating before the Court with conservative justices in some issue areas (Sarver et al., 2007-2008; Szmer, Sarver, & Kaheny, 2010).

Tension Between Norms

  • Feminine norms (empathy, agreeableness, consensus building) may conflict with professional norms (adversarial argument and conflict) at the Court.
  • Violating either gender or professional norms carries the risk of sanction (Biernat, Tocci, & Williams, 2012; Nelson, 2015 Rudman and Glick, 1999, 2001).
  • Female attorneys face a double bind (Rhode, 1994; Wald, 2010).
  • Justice Sotomayor noted that women need to present legal arguments “just like a guy” to be successful (Sotomayor, 2013, p. 180).
  • Violating gender norms leads to social “backlash” and negative evaluations for women (Rudman & Glick, 2001, 1999; Heilman, Wallen, Fuchs, & Tamkins, 2004).
  • Sexism in the legal profession is an “occupational hazard” for women (Sotomayor, 2013, p. 203).
  • These dilemmas are pronounced in male-dominated environments (Eagly & Carli, 2007; Jones, 2016; Wald, 2010).

Research Question

  • Do justices evaluate counsel differently based on their conformity to traditional gender norms?
  • Professional norms of the Court are consistent with masculine norms but inconsistent with feminine norms.
  • Female judges may be cognizant of the tension and less likely to sanction female counsel for violating gender norms.
  • Emotional content in legal briefs is analyzed as women are stereotypically more emotionally expressive than men (Chaplin, 2015; Fischer & LaFrance, 2015; Fischer & Manstead, 2000; Mulac, Giles, Bradac, & Palomares, 2013; Yu, 2011).

Methodology

  • Quantitative textual analysis of 601 party briefs filed at the Supreme Court between the 2010 and 2013 terms.
  • Moves beyond previous work focusing on the presence of female attorneys and the direction of a judge’s vote (Collins, Manning, & Carp, 2010; Szmer et al., 2010).
  • Male justices reward attorneys for conforming to traditional gender norms in briefs.
    • Male attorneys are rewarded for utilizing more masculine language.
    • Female attorneys are rewarded for employing more feminine language.
  • No effect on female justices’ evaluations of legal arguments.

Implications

  • Extends psychological work on gendered communication to appellate courts.
  • Recent diversification of the Bench may have consequences beyond descriptive representation.

Literature Overview

  • Early speculation that female judges would reach more liberal decisions (Gilligan, 1982).
  • Women are more cooperative, empathetic, and inclined toward nonadversarial conflict resolution (Menkel-Meadow, 1986).
  • Greater support for offender treatment and less support for punishment among women in criminal justice (Applegate, Cullen, & Fisher, 2002).
  • Gender is a “lens” through which judges evaluate cases in tandem with other factors (Johnson, Stidham, Carp, & Manning, 2008).
  • Limited gender effects beyond specific issue area effects.
  • Female judges undergo the same professional training as their male peers (Haire & Moyer, 2015).

Specific Issue Area Effects

  • Female judges are more liberal in employment discrimination cases (Songer, Davis, and Haire, 1994).
  • More conservative than male judges in personal liberties and minority policy cases (Walker & Barrow, 1985).
  • Increasingly gender diverse circuits lead to more liberal voting by female judges (Scheurer, 2014).
  • Female district court judges have more settlements (Boyd, 2013) and are more likely to grant motions from parties bringing sex discrimination claims (Boyd, 2016).
  • Jurists are not just the product of their legal training but also their lived experiences (Glynn & Sen, 2015; Haire & Moyer, 2015).
  • The overall gendered composition of a given court affects the salience of gender (Karpowitz & Mendelberg, 2014; Shih, Pittinsky, & Ambady, 1999).
  • More diverse bench should create a more inclusive legal process for women as parties and counsel (Kenney, 2002).

Role of Attorneys

  • Effective attorneys can alter the outcome of a case by swaying a judge’s decision (Corley, 2008; Johnson, Wahlbeck, & Spriggs, 2006; Ringsmuth, Bryan, & Johnson, 2013).
  • Attorney quality is marked by experience, background, or overall skill.
  • Attorneys strategically frame arguments (Wedeking, 2010).
  • Justices can be swayed by effective counsel (Ringsmuth et al., 2013).
  • At upper levels, the legal profession remains predominantly men (Sarver et al., 2007-2008).
  • When women are minorities, gender is a salient feature (Karpowitz & Mendelberg, 2014; Shih et al., 1999).
  • Female attorneys are evaluated more harshly by conservative justices in some issue areas (Szmer et al., 2010).
  • Female attorneys are often seen as incompetent in trial courts (Blodgett, 1986; Kearney & Sellers, 1996; Seidenberg, 1985).
  • Bias toward female attorneys is less likely when gender is less salient.
  • Female attorneys are more successful at the Supreme Court of Canada (Kaheny, Szmer, & Sarver, 2011).
  • Female success falls when attorneys petition the court to overturn a lower court decision (Szmer et al., 2013).

Gender Norms and Stereotypes

  • Gender norms stem from gender stereotypes (Eagly & Mladinic, 1989).
  • Men are expected to express agentic traits (competence, assertiveness, dominance) (Eagly & Carli, 2007; Eagly & Mladinic, 1989).
  • Women are expected to express communal traits (empathy, cooperation, agreeableness) (Eagly & Carli, 2007; Eagly & Mladinic, 1989).
  • Compliance with gender norms negatively affects perceptions of competence for women (Cuddy, Fiske, & Glick, 2008; Heilman et al., 2004).
  • Failure to comply with gender norms negatively affects perceptions of warmth for women.
  • Women in male-dominated fields tend to eschew gender norms to comply with professional norms (Bogoch, 1997; Jones, 2016; Shaw, 2000; Yu, 2014).

Role of Communication

  • Subtle norms of legal communication are deeply embedded in written and verbal communication (Corley, 2008; Corley, Howard, & Nixon, 2005).
  • Attorneys strategically frame arguments (Wedeking, 2010).
  • Briefs are valuable sources of information that justices borrow from (Corley, 2008).
  • Communication serves as a marker of one’s gender (Butler, 1999; Jones, 2016; Pennebaker, 2011).
  • Women use more pronouns and fewer articles than men (Newman et al., 2008).

Emotional Expression

  • Women are stereotypically more emotional than men (Eagly & Carli, 2007; Eagly & Mladinic, 1989; Fischer & Manstead, 2000).
  • Women are more emotionally expressive in communication (Chaplin, 2015; Fischer & LaFrance, 2015; Fischer & Manstead, 2000; Mulac et al., 2013; Yu, 2011).
  • The Court discourages “facts and emotion” and places a premium on detached legal reasoning (Black et al., 2016).
  • Female attorneys must navigate between competing professional and gender norms.

Hypotheses

  • Justices evaluate counsel differently based on their conformity to gendered norms of behavior.
  • Evaluations are less problematic for male attorneys because professional norms are consistent with masculine norms.
  • Female justices may be less likely to sanction female counsel for violating gender norms.

Methods

  • Analysis of direct-party briefs filed in cases decided with oral argument and signed opinions from 2010 to 2013 terms of the Court (Spaeth et al., 2016).
  • Dependent variable: brief success, measured by the extent to which the Court incorporates arguments into the majority opinion (Black et al., 2016; Corley, 2008).
  • Independent variables: attorney gender, majority opinion author gender, and the gendered content of the language employed in the brief.
  • Linguistic Inquiry Word Count software (LIWC) to extract the level of affective, or emotional, content of each brief.
  • Control variables include: political salience, coalition median ideology, vote split, percent women in majority, author ideology, ideological congruence, percent female law clerks, amici advantage, SG party, SG amici, conflict, petitioner brief, winning party, attorney experience, law clerk experience, lexical complexity, percent female legal team, and issue areas.
  • Fractional regression model employed.

Results

  • Male justices reward attorneys for using little traditional gender norms via the affective content found in their briefs.
  • Female counsel are more successful when they conform with female gender norms by using high values of affect in their briefs.
  • No evidence that female justices consider gendered norms of communication.
  • Women are a distinct minority at the Supreme Court Bar, from 2010 to 2013 they constitute roughly 12% of all attorneys filing briefs.

Discussion

  • Male justices enforce traditional gender norms, whereas female justices do not.
  • Differences extend to the extent to which justices enforce gender norms via evaluation of briefs.

Implications for Diversity

  • President Obama’s push to make the federal bench more diverse may move the Court toward a more inclusive institutional culture.

Emotion in Legal Arguments

  • Highlights the underlying gendered components of emotion in judicial decision-making.

Discrepancy with Psychology Literature

  • Psychology literature emphasizes that men and women should enforce the same gender norms (Rudman & Glick, 2001).
  • Findings suggest the context in which gender norms are evaluated has consequences for outcomes.

Future Research

  • Examine contagion effects when male jurists serve on panels with female jurists (e.g., Boyd et al., 2010).
  • Take these findings and apply them cross-nationally.
  • Examine oral arguments.

Methodological Contributions

  • Moves the study of gender and judicial decision-making beyond the mere presence of female attorneys to how the performance of gender is evidenced.

Normative Concerns

  • Raises normative concerns over the consequences of gender in judicial decision-making.
  • If male members of the Court include attorney conformance with gender norms, there are profound consequences for how inclusive the legal process is (Kenney, 2002).