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

Abstract

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.

Bias and Judging

“…However, the authors find mixed results when it comes to voting, with some women judges who are also members of minority groups (for example, black women) voting more liberally on gender-related cases but no real differences in voting on race-related cases. Most recently, Gleason, Jones and McBean (2018) find that male U.S. Supreme Court justices evaluate female attorneys based on traditional gender norms, but female justices do not.…”

Beyond Mere Presence: Gender Norms in Oral Arguments at the U.S. Supreme Court

“…Weddington’s experiences underscore how gender norms, subconscious ingrained expectations about how men and women should act (Jones 2016; Rudman and Glick 1999, 2001), shape outcomes across a host of contexts (e.g., Karpowitz and Mendelberg 2014). While gender norms can involve practically any aspect of interaction, including mannerisms and appearance, scholars frequently focus on the use of language (e.g., Gleason, Jones, and McBean 2019; Jones 2016; Pennebaker 2011; Yu 2014). Importantly, language lies at the heart of an attorney’s job.…”

“…This places female attorneys in a difficult balancing act where they must navigate competing professional and gendered expectations (Rhode 1994). Violating expectations, either professional or gendered, can negatively shape decision-makers’ calculus even if only at the subconscious level (Gleason, Jones, and McBean 2019; Kathlene 2001). Faced with such a balancing act, women tend to downplay their gender by adopting masculine communication styles in professional contexts (Gleason, Jones, and McBean 2017; Kanter 1977).…”

“…Thus, it is not just important that an attorney is a woman, but it is also important whether she argues consistent with gendered expectations (e.g., Rudman and Glick 2001). A host of scholarship, both on the Court (e.g., Gleason, Jones, and McBean 2019) and in other political contexts (e.g., Jones 2016; Karpowitz and Mendelberg 2014; Shaw 2000; Yu 2014), stresses compliance or violation of gender norms sways decision-makers and, thus, alter the shape of case law binding on all lower courts. While previous work notes this effect exists in party briefs (Gleason, Jones, and McBean 2019), I argue it is also present in oral arguments.…”

“…A host of scholarship, both on the Court (e.g., Gleason, Jones, and McBean 2019) and in other political contexts (e.g., Jones 2016; Karpowitz and Mendelberg 2014; Shaw 2000; Yu 2014), stresses compliance or violation of gender norms sways decision-makers and, thus, alter the shape of case law binding on all lower courts. While previous work notes this effect exists in party briefs (Gleason, Jones, and McBean 2019), I argue it is also present in oral arguments. Importantly, oral arguments are the only public stage of the judicial decision-making process and the sole instance where attorneys directly interact with justices.…”