What do we mean when we say we need more female justices?

The law, lawyers, and the court.
April 11 2009 7:18 AM

The Fairer Sex

What do we mean when we say we need more female justices?

Sandra Day O'Connor. Click image to expand.
Former Supreme Court Justice Sandra Day O'Connor 

It's almost an article of faith among Supreme Court watchers that President Obama will fill the bench's next vacancy—and perhaps the one after that, too— with a woman. The current court's sole female member, Ruth Bader Ginsburg, has said she is "lonely" there, and even if she's not the next to step aside and another women joins her, that's still just two out of nine. Americans seem quite certain that isn't enough. Former Justice Sandra Day O'Connor, on learning in 2005 that John Roberts would take her place, declared him"good in every way, except he's not a woman." Americans concur. In a CNN/USA Today/Gallup poll taken just before Roberts was appointed, 80 percent of respondents said it was a good idea to replace O'Connor with a woman, and 13 percent said it was "essential." And with women claiming a large share of responsibility for Obama's victory over John McCain, the demand for a more gender-balanced court is stronger than ever.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

But why does Obama owe us another woman justice? Is it simply a matter of appearance? Is gender balance necessary for the court to have what political scientists like to call "social legitimacy"? Or is there something more fundamental that women bring to the bench—something about the way they decide cases—that makes the need for more of them so urgent?

Advertisement

Debate has raged for decades now about whether there is something unique about women's jurisprudence. A 1986 study of O'Connor's opinions published by professor Suzanna Sherry, now at Vanderbilt University, saw evidence there of a "feminine jurisprudence … quite unlike any other contemporary jurisprudence." Defenders of the notion of a woman's legal reasoning often build their case on the groundbreaking work of psychologist Carol Gilligan, whose 1982 book, In a Different Voice, claimed that female moral reasoning is fundamentally different. Men, the theory goes, prefer their law with rigid rules, clear lines, and neutral principles; women, meanwhile, want to look at the totality of the circumstances and apply broad discretion, preferring what Gilligan calls an "ethic of care" to an "ethic of rights."

So, for example, some of the different voice theorists would argue that O'Connor's preferences for flexible case-by-case standards in the context of abortion, or her concern for the uneasy nonbelievers in cases about public displays of religion, reflect a softer, more "relational" approach to the law, while Justice Antonin Scalia's emphasis on unchanging rules and crisp legal principles is, fundamentally, a guy thing. This is, of course, a rather broad-brush approach to both gender and judging, and some feminists object that it ultimately hurts women to talk of them in such gauzy generalities. Why perpetuate the idea that woman are all about tenderness and feelings while men are all about muscular rights?

Whichever side of the debate you espouse, the empirical studies on gender and judging have been almost completely equivocal so far. But in an award-winning 2008 paper titled "Untangling the Causal Effects of Sex on Judging," Washington University's Christina L. Boyd and Andrew D. Martin and Northwestern School of Law's Lee Epstein suggest that women judges really are different. Surveying sex discrimination suits resolved by panels of judges in federal circuit courts between 1995 and 2002, the researchers examined whether male and female judges decide cases differently, and went on to look at whether the presence of a female on a panel of judges affects the behavior of her male colleagues.

Here's what they found: The male judges were 10 percent more likely to rule against alleged sex-discrimination victims. And male judges were "significantly more likely" to rule in their favor if a woman judge served on their panel. Because Epstein, Boyd, and Martin were studying only sex-discrimination cases—situations in which gender is front and center—it's unclear whether their data would hold true in cases in which gender were beside the point. Still, an intriguing implication of this study is that male judges rule differently when they're sharing the bench with a woman. It may suggest female moral reasoning—if such a thing exists—might be contagious.

TODAY IN SLATE

History

The Self-Made Man

The story of America’s most pliable, pernicious, irrepressible myth.

The GOP Senate Candidate in Iowa Doesn’t Want Voters to Know Just How Conservative She Really Is

Does Your Child Have “Sluggish Cognitive Tempo”? Or Is That Just a Disorder Made Up to Scare You?

The Supreme Court, Throughout Its History, Has Been a Massive Disappointment

Why Indians in America Are Mad for India’s New Prime Minister

Damned Spot

Now Stare. Don’t Stop.

The perfect political wife’s loving gaze in campaign ads.

Building a Better Workplace

You Deserve a Pre-cation

The smartest job perk you’ve never heard of.

Rehtaeh Parsons Was the Most Famous Victim in Canada. Now, Journalists Can’t Even Say Her Name.

Parents, Get Your Teenage Daughters the IUD

The XX Factor
Sept. 30 2014 12:34 PM Parents, Get Your Teenage Daughters the IUD
  News & Politics
Politics
Sept. 30 2014 5:19 PM Social Outcasts Republican candidates are retreating from debates on abortion, gay marriage, and contraception.
  Business
Building a Better Workplace
Sept. 30 2014 1:16 PM You Deserve a Pre-cation The smartest job perk you’ve never heard of.
  Life
Education
Sept. 30 2014 1:48 PM Thrashed Florida State’s new president is underqualified and mistrusted. But here’s how he can turn it around.
  Double X
The XX Factor
Sept. 30 2014 12:34 PM Parents, Get Your Teenage Daughters the IUD
  Slate Plus
Behind the Scenes
Sept. 30 2014 3:21 PM Meet Jordan Weissmann Five questions with Slate’s senior business and economics correspondent.
  Arts
Brow Beat
Sept. 30 2014 4:45 PM Steven Soderbergh Is Doing Some Next-Level Work on The Knick
  Technology
Future Tense
Sept. 30 2014 4:59 PM China’s Not the Problem With Carbon Emissions. We Are.
  Health & Science
Bad Astronomy
Sept. 30 2014 7:30 AM What Lurks Beneath the Methane Lakes of Titan?
  Sports
Sports Nut
Sept. 28 2014 8:30 PM NFL Players Die Young. Or Maybe They Live Long Lives. Why it’s so hard to pin down the effects of football on players’ lives.