No full-text available
To read the full-text of this research,
you can request a copy directly from the authors.
Have We Come a Long Way, Baby? The Influence of Attorney Gender on Supreme Court Decision Making
Abstract
While the impact of an attorney's sex has been examined with respect to trial court processes (e.g., jury decision making), no one has previously studied its effects on appellate court decision making. In this article, we argue that the application of gender schemas by some justices results in a devaluing of the arguments made by women litigators. Our findings suggest that women orally arguing attorneys are less likely to receive a favorable vote by a justice than are the male counsel they oppose and that conservative justices are more likely than their liberal counterparts to vote against litigants represented by female counsel at oral argument. This suggests that the ideology of elites influences whether they apply gender schemas in a negative fashion. We also find that justices are more likely to side with female lawyers in women's issues cases, indicating that the justices' perceptions of female lawyer expertise are enhanced in those cases. These findings persist even after controlling for multiple factors, including attorney expertise, the sex of the justice, amicus participation, party capability, and judicial ideology.
... Gender norms, implicit expectations about how men and women should act in a myriad of contexts (Bauer 2017;Eagly and Carli 2007;Jones 2016), operate in numerous ways (Cashdan 1998). Typically, work on the Supreme Court examines how the presence of female attorneys impacts judicial behavior (see, e.g., Patton and Smith 2017;Szmer, Sarver, and Kaheny 2010). When a (wo)man approaches the lectern, justices implicitly note their sex and activate gender-normative behavioral expectations (e.g., Olivola and Todorov 2010;Shih, Pittinsky, and Ambady 1999;Witt and Wood 2010). ...
... All of these factors are mutable; attorneys can accrue more experience or get a new job. However, scholars increasingly note that attorney success is predicted by immutable characteristics, such as sex, under some conditions (see, e.g., Gleason 2020; Gleason and Smart 2023;Szmer, Sarver, and Kaheny 2010). These studies begin with presence: when a female attorney rises to speak, justices implicitly note her sex (Olivola and Todorov 2010;Shih, Pittinsky, and Ambady 1999). 2 This sex cue calls forth gender norms. ...
... This is especially pronounced in American federal appellate courts, where, despite increased diversity in the legal profession overall, women remain underrepresented (Solberg and Diascro 2020;Szmer, Kaheny, and Sarver 2021). At the Supreme Court, female attorneys are less likely to secure justice votes under some conditions (Szmer, Sarver, and Kaheny 2010), and they are interrupted earlier and more often than male attorneys Smith 2017, 2020). 4 While most studies rely on the presence of women, recent work takes a more performative conceptualization of gender and finds that women's success varies depending on how gender is performed. ...
Female attorneys at the U.S. Supreme Court are less successful than male attorneys under some conditions because of gender norms, implicit expectations about how men and women should act. While previous work has found that women are more successful when they use more emotional language at oral arguments, gender norms are context sensitive. The COVID-19 pandemic prompted perhaps the most radical contextual shift in Supreme Court history: freewheeling in-person arguments were replaced with turn-based teleconference arguments. This change altered judicial decision-making and, I argue, justices’ assessments of attorneys’ gender performance. Using quantitative textual analysis of oral arguments, I demonstrate that justices implicitly evaluate gender performance with different metrics in each modality. Gender-normative levels of emotional language predict success in both formats. Function words, however, only predict success in teleconference arguments. Given gender’s salience at the Supreme Court and in broader society, my findings prompt questions about the extent to which women can substantively impact case law.
... Reflecting on her career practicing before the Court, Lisa Blatt noted, "women have a harder time than men successfully arguing before the Court." 1 This is not simply the view of Ms. Blatt. There is a widely held belief that these hurdles and discriminatory practices exist in the courtroom, resulting in women attorneys fairing worse than men before the Court (Gleason, Jones, and McBean 2019;Karpowitz and Mendelberg 2014;Patton and Smith 2017;Szmer, Sarver, and Kaheny 2010). 2 Associated claims suggest that men attorneys force out women attorneys from getting Supreme Court cases (Mencimer 2016), that women are less interested in arguing before the Supreme Court (Brinkmann 2003), and that they are less successful advocates. ...
... Scholarship investigating the influence of attorney gender on judicial outcomes is mixed, sometimes finding that attorney gender is related to outcomes and other times not. For example, some work finds that no differences emerge, generally, between the willingness of the justices to vote in favor of a party represented by men or women attorneys, except in the case of the most conservative justices (Szmer, Sarver, and Kaheny 2010). Gleason (2020) finds that litigants represented by women may be more likely to win when the attorney adheres to gender norms when addressing the Court, and less likely to win otherwise. ...
... Some previous research has suggested that women attorneys may be more successful in cases involving "women's issues," because they are considered more credible sources in those case (Szmer et al. 2013;Szmer, Sarver, and Kaheny 2010). Following Szmer, Sarver, and Kaheny's (2010) coding of cases that deal with topics seen as "women's issues," we create a variable indicating if the case attorneys are arguing deals with an issue area often considered favorable to women. ...
Stereotypes are powerful heuristics structuring decision-making, with research suggesting that gender-based stereotypes place women at a professional disadvantage. This paper tests whether attorneys’ gender influences Supreme Court outcomes. We construct an attorney-focused data set combining personal and professional attributes with case-level characteristics from 1946 to 2016. Our approach brings clarity to previous findings, enabling a longitudinal analysis of women participation before the Court. We find that attorney gender does not influence party success. In doing so, we show that a more nuanced approach is needed when studying the intersection between judicial outcomes and attorney traits.
... In these studies, attorneys for the petitioner and respondent are fully in control of the narrative (e.g. Gleason 2020;Szmer, Sarver, and Kaheny 2010). When the amicus begins to speak, her or his argument does not stand on its own, independent of the endorsed attorney's argument. ...
... As a number of recent studies note, the Court's expectation of attorneys often turns on the question of identity (e.g. Gleason, Jones, and McBean 2019;Gleason 2020;Szmer, Sarver, and Kaheny 2010). ...
... Female attorneys are often presumed to be support staff or incompetent at trial courts (Blodgett 1986;Kearney and Sellers 1996;Seidenberg 1985). They are generally less successful than their male counterparts at the Supreme Court (Szmer, Sarver, and Kaheny 2010), and are interrupted more at oral arguments than men (Patton and Smith 2017). This seemingly suggests women are more successful when they are supported by a male amicus, as his credibility may be "lent" to her and the narrative. ...
Attorney success at oral arguments is related to compliance with gender norms, subtle expectations about how men and women should speak and act in a host of contexts. While oral arguments are typically between two attorneys, amici curiae are present in a significant minority of cases. Amici, often representing the federal government, lend credibility to their endorsed attorney and complement the argument. Much like arguments for attorneys representing the petitioner and respondent, we contend amici oral argument success is tied to the performance of gender. However, while attorneys for the petitioner and respondent are more successful when adhering to gender norms, amici success is tied to mimicry of the gender norms associated with the endorsed attorney. Thus, a female attorney supporting a male attorney will be more successful if she utilizes male gender norms. Drawing on communication literature, we argue this is because endorsed attorneys and their amici collectively construct a narrative. By arguing first, the endorsed attorney sets gender norm expectations which the amicus then matches via mimicry. We find support for this argument via a quantitative textual analysis of oral amicus arguments from the 2004–2016 terms. While our results add a new wrinkle to our understanding of gender at oral arguments, they also raise normative concerns. Whereas previous work indicates women must balance gender and professional norms, our results suggest that it is not just women who are held to this double standard, but also the men who support them. This compounds concerns about how effectively women can participate as counsel at the Supreme Court.
... For instance, Republican leaders in the U.S. Senate Judiciary Committee hired a female attorney to question Christine Blasey Ford following her allegations of sexual assault committed by Supreme Court nominee Brett Kavanaugh (Birnbaum, 2018). Republican leadership likely believed that observers would perceive a female attorney more favorably than a male attorney in the context of sexual assault allegations, and this notion is supported by some research (e.g., Szmer, Sarver, & Kaheny, 2010). The main effects of attorney gender-and exceptions to these effects-are discussed below, including possible explanations for these effects found in the empirical psychological literature. ...
... Attorney gender can influence jurors' perceptions of case facts as well as jurors' verdict judgments (e.g., Hodgson & Pryor, 1984). Results of studies about attorney gender effects on case outcomes are mixed: Sometimes men are perceived more favorably and achieve better outcomes than women (Salerno, Phalen, Reyes, & Schweitzer, 2018), and sometimes women outperform men in these respects (Szmer et al., 2010). Yet other times, attorney gender does not affect attorney success (Abrams & Yoon, 2007). ...
... Case type can also moderate the effects of attorney gender on legal outcomes. Although men might be more effective at arguing their cases due to increased baseline rates of assertiveness, female attorneys are more effective than their male counterparts specifically in women's issues cases (Szmer et al., 2010). This finding indicates that observers might perceive female attorneys to be more credible than male attorneys in cases that make gender salient, perhaps because women are considered to have unique expertise in these areas. ...
Although the American legal system does not statutorily permit differential civil and criminal trial outcomes on the basis of gender, empirical observations of the effects of gender on trial outcomes are ample yet mixed. For several decades, legal actors have attempted to diminish the effects of gender in the courtroom through Supreme Court rulings, presidential policies, legislation, and modification of language in legal documents. Social scientific research suggests that implicit and explicit processes likely affect how the gender of legal actors (e.g., defendants, victims) relates to trial outcomes. This chapter first discusses a variety of laws and policies designed to curtail gender bias generally (e.g., in employment settings) and in the trial process specifically. Next, the chapter synthesizes empirical research that demonstrates the relationship between gender and trial process and outcomes. This synthesis of the psychological research includes specific emphasis on the gender of five primary legal actors: victims, defendants, attorneys, experts, and legal decision-makers. Then, the chapter offers psychological mechanisms that explain why the gender of legal actors (e.g., jurors, witnesses) might relate to trial outcomes. We include overarching theoretical psychological explanations for the observed effects of gender using the symbolic interaction framework and the influence of gender roles and stereotypes. Finally, we identify deficits in the existing research on the relationship between gender and the trial process, suggesting topics for future empirical examination.
... Keywords judicial decision-making, gender, social psychology, emotion, quantitative textual analysis For most of the U.S. Supreme Court's history, the Bench and Bar were closed to women because of their supposed inability to handle the rigors of the legal profession. 1 Three women now sit on the Bench; yet at the Bar, women are significantly outnumbered by men (Sarver et al., 2007(Sarver et al., -2008 and they are less successful than men in advocating before the Court with conservative justices in some issue areas (Szmer, Sarver, & Kaheny, 2010). The tension between the feminine norms of behavior expected of women and the professional norms expected at the Court may be an important explanation for this discrepancy. ...
... We thus analyze the emotional content in all 601 party briefs filed at the Supreme Court between the 2010 and 2013 terms using quantitative textual analysis, (e.g., Black et al., 2016;Pennebaker, Chung, Ireland, Gonzales, & Booth, 2007;Wedeking, 2010). In doing so, we move beyond previous work on attorney gender and judicial decision-making, which focuses on the presence of female attorneys and the direction of a judge's vote (e.g., Collins, Manning, & Carp, 2010;Szmer et al., 2010). Our findings suggest that male justices reward attorneys, both male and female, for conforming to traditional gender norms in briefs. ...
... Although there are multiple studies on how attorney gender affects judicial decision-making at appellate courts, most focus on the effects of the mere presence of female attorneys. For instance, Szmer et al. (2010) note female attorneys are evaluated more harshly by conservative justices in some issue areas, though they are more successful in cases involving women's issues in which women are expected to be more knowledgeable. In trial courts, female attorneys are often seen as incompetent by other attorneys and judges (Blodgett, 1986;Kearney & Sellers, 1996;Seidenberg, 1985). ...
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.
... This positive effect on the quality of the judgment might be related also to the discriminatory behavior of the disputing parties. Szmer et al. (2010) provide an explanation for similar results stating that the presence of a woman might lead to questioning the final judgment of the team if one of the parties involved in the dispute applies a discriminatory behavior being skeptical of the women's judgment abilities. Therefore, only half of our first hypothesis is confirmed, namely, mixed gender teams take longer to reach a final judgment. ...
... Second, the arbitrator market is competitive, and its barriers keep less competent arbitrators out of the network. 34 A long-term suggestion, as supported by Szmer et al. (2010), is that only when women are not a minority in a system, gender barriers will be more likely to be removed and the cooperation, given a gender diversity, becomes then more equal and effective. However, some institutional rules should be established to follow this agenda (Puig 2014). ...
In the context of international investment disputes, this paper investigates how arbitrator team characteristics affect team performance in solving disputes between a host country and a foreign investor. Our data include 277 judgments issued by arbitrator teams at the International Centre for Settlement of Investment Disputes at the World Bank from 1972 to 2018. The time to resolution and the quality of the final judgment, as measured by the requirement of a follow-on proceeding to rectify mistakes, are used to measure the team performance. We consider both biographical and professional characteristics of the arbitrators as determinants of the team performance. We find that mixed gender teams and previous team member’s collaborations increase the time to resolution contrary to team members’ experience and diversity in the professional background that decrease it. None of the team characteristics considered has an impact on the quality of the final judgment. Our findings talk to the current policy debate on the reform of the international investment arbitration system aiming to increase its effectiveness and transparency.
... Feldman and Gill (2016) find that female justices on the Court are interrupted more frequently by fellow justices than are their male colleagues, and Jacobi and Schweers (2017) find that female justices are interrupted at disproportionate rates by male lawyers. Szmer et al. (2010) also reveal that Supreme Court justices were nearly 9% less likely to vote in favor of legal positions favored by women attorneys than those favored by male attorneys. In addition, recent experimental work reveals that judicial decisions were perceived as more authoritative when labeled as authored by "Anthony Kennedy" than by "Sandra Day O'Connor" (Boddery et al. 2016). ...
... This includes evidence that, for Senate candidates, there is a strong link between political preferences and perceptions of women (Koch 2000) and race (Sigelman et al. 1995). At the U.S. Supreme Court, while justices were less likely to vote for legal positions favored by women attorneys than those favored by male attorneys, there is about a 10% higher likelihood of support for the female lawyer's position if it is consistent with the justice's ideology (Szmer et al. 2010). 6 In the context of Supreme Court confirmation hearings, we expect that partisan congruence between the questioning senator and the nominee will serve an important conditioning role on the presence and level of out-group bias. ...
We investigate an unexplored aspect of the U.S. Supreme Court confirmation process: whether questioning senators treat female and minority nominees differently from male and white nominees. Applying out‐group theory, we argue that senators will ask female and minority nominees more questions about their “judicial philosophies” in an effort to determine their competence to serve on the Court. This out‐group bias is likely to be exacerbated for nominees not sharing the senator's political party. Our results do not support racial differences, but they do provide strong evidence that female nominees receive more judicial philosophy‐related questions from male senators. This effect is enhanced when the female nominee does not share the partisan affiliation of the questioning senator. Together, these findings indicate that female nominees undergo a substantively different confirmation process than male nominees. We further find that this effect may be most intense with nominees like Justice Sotomayor, whose identities align with more than one out‐group.
... New information mixes with existing stereotypes to influence an individual's expectations about others (Lemons and Parzinger 2007). At the Supreme Court, as in other political arenas, White men are stereotyped as more credible, authoritative, and rational, whereas women are assumed to be emotional, gentle, and cautious (Huddy and Terkildsen 1993, Patton and Smith 2017, Szmer, Sarver and Kaheny 2010. ...
Racial and gender bias pervade American political institutions, and the Supreme Court is no exception. Women lawyers are interrupted more and allowed to speak for less time than their male colleagues. We expect that stereotypes will also lead to biased treatment of attorneys of color, and will have the greatest impact on women attorneys of color due to their intersectional identity. In doing so, we introduce a refined measure of interruptions that more precisely captures oral argument dynamics. Using a database of the race of members of the Supreme Court bar and transcripts of all oral arguments held from October Terms 2009 – 2018, we find that women attorneys of color receive harsher treatment by the justices during oral arguments than their peers. We also find that when the case involves racial issues, attorneys of color are interrupted less than their white counterparts.
... It did not rule on use of the funds themselves. 9 Others investigate the gender of the lawyer arguing the case before the court (Szmer, Sarver, and Kaheny 2010) or the gender of defendants (e.g., Doerner and Demuth 2010), and substantial research considers possible differences in voting between female and male judges (e.g., Boyd, Epstein, and Martin 2010). 10 Between 1946 and 1964, the Supreme Court decided only three gender cases: Ballard v. ...
To influence outcomes in U.S. women’s rights Supreme Court cases, feminist advocacy groups and their allies routinely file amicus curiae briefs, third-party briefs designed to persuade the justices in their decision-making. Yet no study has systematically examined the impact of these feminist-supporting amici on judicial decision-making. We argue that advocacy groups’ amicus mobilization can be understood as institutional activism, activism utilizing a judicial channel through which advocacy groups can communicate directly with the justices. To discern whether this form of feminist institutional activism shapes judicial law, we examine amicus activity in the women’s rights cases from the mid-1960s until 2016. We utilize a resource mobilization perspective to examine mobilization of amici but offer refinements of the theory by invoking affected-groups and information theories. Our regression analyses show that use of amici can persuade the justices to vote in favor of the feminist litigant. We also investigate whether the influence of feminist amicus activity is moderated by legal circumstances (for instance, whether a justice is conservative or liberal). We find only limited evidence that the potency of this form of institutional resource mobilization is moderated by the legal context.
... 32. A long-term suggestion, as supported by Szmer et al. (2010), is that only when women are not a minority in a system, gender barriers will be more likely to be removed and the cooperation, given a gender diversity, becomes then more equal and effective. However, some institutional rules should be established to follow this agenda (Puig 2014 Table 3.6 in Appendix 3.D for the partial correlation between the quantity (proxied by Time to resolution) and the quality (proxied by Follow-on proceeding). ...
International investment treaties often allow the foreign investor to sue the host country before international arbitration in case of breaches of treaty provisions. The number of investor-state disputes is growing so rapidly that some countries expressed their discomfort with the current international investment law regime. The first chapter gives readers a comprehensive view on the effectiveness and spillover effect of international investment arbitration. Based on a vast interdisciplinary literature, we reexamine recent criticisms and identify the root of the crisis faced by international arbitration. We conclude that it is possible for countries to adapt the current regime of international law to new situations without wholesale exit. The second chapter investigates the early settlement of investor-state disputes. Drawing on the rich economic literature and a new dataset related to treaty-based disputes, we find that the host state's experience, the case prospect, the nature of the regulatory measures, the identity of investors and Dutch investment treaties have significant impacts on the probability of early settlement. The third chapter focuses on an institutional dimension of arbitration: the effectiveness of ICSID in solving disputes. The time to resolution and the quality of the final judgment which is measured by the requirement of follow-on proceedings are used as performance indicators. We highlight how arbitrators' biographical and professional characteristics can impact the ICSID effectiveness.
... Female lawyers have been suggested to impact jury decision making given their distinctive approach in interpreting the law and communicating legal arguments (Szmer et al. 2013). Their expertise in women's issues and emotional oral argument may further result in justices' support for certain cases (Szmer et al. 2010;Kromphardt 2017;Gleason et al. 2019;Gleason 2020). ...
This paper investigates the influence of women in politics on decision-making using public educational expenditures as the outcome of interest. The results suggest that an increase in the share of female legislators by one percentage point increases the ratio of educational expenditures to GDP by 0.038 percentage points. I then consider some different contexts, under which the influence of female legislators may be affected. The effect of female legislators on educational policies is robust in the different contexts considered, but the magnitude may change revealing perhaps that the distribution of female legislators depends on the context. Moreover, this study supports the hypothesis that the identity of the legislator matters for policy. To determine whether female legislators have causal impact on education, this paper uses electoral rules as the instrument for the proportion of female legislators. The results are encouraging, and are very likely to provide causal evidence of female legislators on educational expenditures.
... We control for Attorney Experience and Opponent Experience by counting the total number of previous cases argued by the attorney and those of his or her opponent (McGuire 1995). We also control for whether the attorney is a Male Attorney (Szmer, Sarver, and Kaheny 2010). We control for whether the attorney was a Petitioner Attorney as well as the attorney's Net Resource Advantage using the partyspecific sliding scale of Collins (2004Collins ( , 2008. ...
When arguing at the U.S. Supreme Court, former High Court law clerks enjoy significant influence over their former justices. Our analysis of forty years of judicial votes reveals that an attorney who formerly clerked for a justice is 16 percent more likely to capture that justice’s vote than an otherwise identical attorney who never clerked. What is more, an attorney who formerly clerked for a justice is 14 to 16 percent more likely to capture that justice’s vote than an otherwise identical attorney who previously clerked for a different justice. Former clerk influence is substantial, targeted, and appears to come from clerks’ personalized information about their justices. These results answer an important empirical question about the role of attorneys while raising normative concerns over fairness in litigation.
... Por otro, se encuentran investigaciones en las que se analiza el uso del lenguaje de género como categoría de análisis en las decisiones judiciales (Oosterverld, 2014;Koomen, 2014;Kenney, 2010;Maveety, 2010). Además, hay aportes clave que indagan en qué medida influye sobre la decisión judicial el hecho de que el abogado litigante sea una mujer (Szmer et al., 2010). Desde los estudios de constitucionalismo comparado también se ha investigado cómo la inclusión de disposiciones relativas al género influyen en el estatus político y económico de las mujeres (Scribner y Lambert, 2010). ...
Contrary to what would be expected, the decline in judicial independence positively affects the representation of women in high courts. According to the theory I propose, this phenomenon is explained because, due to deficiencies in judicial independence, the political actors try to strategically reduce the costs derived from this phenomenon selecting more women in the benches of supreme or constitutional courts. Therefore, in labor
markets with structural distortions such as those in Latin America, the presence of more supreme or constitutional women judges should not necessarily be interpreted as an reflect that political actors are interested in reducing asymmetries in decision-making arenas.
... levels of private practice and other legal occupations (Smith 2013). Prior research also finds that, compared to white men, minority and female attorneys perceive more frequent unfair treatment from other lawyers in negotiations and other professional interactions (Collins, Dumas, and Moyer 2017b;Stepnick and Orcutt 1996) and may be treated less favorably by judges and jurors (Cohen and Peterson 1981;Hahn and Clayton 1996;Szmer et al. 2013;Szmer et al. 2010). ...
In spite of popular perceptions about legal actors operating in a competitive environment, political scientists note that long-term relationships among attorneys, judges, and court personnel develop over time. These working relationships can help attorneys achieve positive outcomes for their clients, increase efficiency in court proceedings, and help enhance attorneys’ professional reputations. But what happens when attorneys have to venture out of familiar territory to try a case? Using a survey of attorneys practicing in a southeastern state, we explore the extent to which civil and criminal litigators perceive unfair treatment by judges and court personnel when practicing in unfamiliar jurisdictions. Are certain types of attorneys more apt to perceive unfair treatment than others? The results show that, compared to white male attorneys, minority men perceive more unfair treatment from judges, and white women perceive more unfair treatment from court staff. Perceptions of unfairness are also generally higher for attorneys with fewer years in the profession, though very experienced minority men report much higher levels of unfair treatment by judges than other similarly experienced groups. This suggests that the challenges associated with working in a new or less familiar setting are not felt equally across all attorneys. The findings have important implications for understanding potential barriers for diverse groups within the legal profession.
... Finally, we test a multivariate model of clerkship appointments by individual U.S. Supreme Court justices in a given year, and this, too, is guided by a number of theoretical considerations. These expectations emanate, in part, from previous assessments of clerkship selection, a previous study examining the influence of lawyer gender before the SCOTUS (Szmer, Sarver, and Kaheny 2010), and from other related research in the field of gender studies. ...
In this article, we systematically analyze the available data on SCOTUS clerk appointments to more thoroughly investigate the gender disparity in the hiring practices of its justices across the time period, 1941 to 2011, and compare this data, whenever possible, to that collected for the SCC from 1967 to 2007. In doing so, we are especially interested in exploring the impact of justice ideology and justice gender on individual decisions to hire female clerks. We maintain that the gender imbalance that has characterized the U.S. Supreme Court's composition might, at least partially, account for the discrepancy between the number of male and female clerks that have worked for this Court. It may also explain the notable relationship between a justice's ideology and his or her decision to hire female clerks.
Objective
At U.S. Supreme Court oral arguments, female attorneys are more likely to be interrupted than their male counterparts under some conditions. This makes it difficult for women to effectively construct a narrative and substantively impact case law. While existing work conceptualizes gender as a binary, I draw on recent work stressing gender is performative to deesentialize gender and explore how attorneys’ compliance with gender norms and subtle expectations about men's and women's behavior in a host of contexts, predicts interruptions at oral arguments.
Methods
Via quantitative textual analysis of all oral arguments from 2004 to 2019 where one attorney argues for the petitioner and one for the respondent, I examine the extent to which gender norm compliance predicts interruptions.
Results
I find both male and female attorneys are interrupted more frequently when their oral arguments are not gender normative. Thus, an argument that is successful for a male attorney is not necessarily successful for a female attorney, and vice versa.
Conclusion
My results underscore female attorneys are not less successful as a matter of course; attorney success is driven by attorney compliance with gender norms. This work also raises a number of normative questions I encourage future scholars to explore.
Attorneys’ ability to secure justice-votes is shaped by gender schemas, subconscious expectations which hold women should use more emotion than men. This poses few problems for male attorneys since men and attorneys are both expected to avoid emotion. But, women are placed in a double-bind with competing professional and personal expectations. We argue gender schemas are not static rather they change with the context of the Court. Introducing a new dataset inclusive of all oral arguments from 1979 to 2016, we utilize quantitative textual analysis and find gender schemas predict securing justice-votes as the Bar becomes more diverse and justices become more conservative. Our results raise normative concerns about female attorneys’ ability to substantively contribute to the Court’s case law.
We investigated the interactive effect of attorney anger expression and attorney gender on juror decision-making. Jury eligible Amazon MTurk participants (N = 455) were recruited. They listened to an audio recording of a male or female prosecutor delivering a closing statement with varying levels of authenticity (authentic, inauthentic or no anger). Then, they rendered a verdict. After the verdict, participants filled out various measures: guilty verdict confidence, current feelings of anger, and perceptions of prosecutor trust and competence. We found that the prosecutor’s authentic displays of anger provoked anger in the participants, which, subsequently, increased the odds of a guilty verdict and guilty verdict confidence. Moreover, authentic displays of anger improved perceptions of the prosecutor’s competence, which also increased the odds of a guilty verdict. However, perceptions of the prosecutor’s trustworthiness did not vary, and attorney gender did not play a moderating role. The implications of these findings are discussed.
Objective
Gender disparities in litigation task assignment are not limited to the trial court context; they are present in even the highest of courts in the United States. We explore and seek to explain the gendered patterns of participation by lawyers arguing before the U.S. Supreme Court.
Methods
After quantitatively describing participation by female attorneys in Supreme Court litigation, we use logistic regression and fractional logit, respectively, to identify factors that influence the degree to which women deliver oral arguments and participate in writing litigant briefs.
Results
Descriptively, we find that male attorneys present more oral arguments than female attorneys, and most litigant briefs are written by male-dominated teams. In fact, more than a third of the briefs are only signed by men. In multivariate analyses of Supreme Court oral arguments and briefs, we find that women are more likely to argue and sign briefs on issues in which they are stereotypically perceived as more competent (women's issues) and less likely to participate in issue areas where they are perceived to be less competent, like economic issues. Similarly, women are less likely to orally argue in complex cases.
Conclusion
While occupational segregation and other factors may play a role, the participation of female attorneys in this forum is likely driven, in part, by stereotyped assessments of their competency.
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.
Women are less successful than their male counterparts at Supreme Court oral arguments under certain circumstances. However, existing work relies on mere presence rather than on any action female attorneys take in their argument. Drawing on recent work that stresses gender is performative, I argue success for women at oral arguments is tied to conformance with gender norms, subtle and unconscious expectations of how men and women should communicate. Via a quantitative textual analysis of the 2004–2016 terms, I find attorneys are more successful when their oral arguments are more consistent with gender norms. Specifically, male attorneys are rewarded for using less emotional language whereas female attorneys are successful when using more emotional language. This study represents a more nuanced and performative understanding of gender at oral arguments. These results raise normative concerns about how effective women are at the Supreme Court.
We examine gender bias in political institutions through a novel lens: oral arguments at the US Supreme Court. We ask whether female lawyers are afforded less speaking time during oral arguments compared to male lawyers. We posit that justices, while highly educated and more aware than most of laws requiring equal treatment, may be influenced by gender schemas that result in unconscious biased treatment of male and female lawyers. Applying automated content analysis to the transcripts of 3,583 oral arguments, we find that female lawyers are interrupted earlier, allowed to speak for less time between interruptions, and subjected to more and longer speeches by the justices compared to their male counterparts. However, this pattern is reversed during oral arguments involving gender-related cases. Our most novel and significant theoretical finding is that gender negates the well-documented positive effect of being on the winning side of a case.
Objective
This article explores the impact of race, gender, age, and intersectionality on attorneys' perceptions of unfair treatment by other lawyers and on satisfaction with their legal careers.
Method
Using an original survey of over 2,000 attorneys, ordered logit is utilized to analyze attorneys’ perceptions of disparate treatment based on race, gender, and age and to test whether minority female attorneys face unique barriers within their professional relationships.
Results
We find that minority women are more likely than others to perceive unfair treatment based on race, gender, and age. This also contributes to lower career satisfaction for attorneys who are women of color than for other groups.
Conclusion
The findings have important implications for understanding attorney relationships and potential barriers for minority groups within a profession's culture. These obstacles not only impact attorneys, but could also influence attorney choice for citizens and the prospects for a representative judiciary.
Scholars have analyzed how those with close ties to Supreme Court justices—including family, friends, and political and legal elites—influence judicial behavior, but there are still questions about how law clerks’ attributes affect their relationship to their justice. This is important because clerks’ genders may affect their credibility and their ability to influence their justice’s behavior when a case involves a clear gender dimension. Scholars have uncovered a great deal about the determinants and consequences of the credibility of a different set of attorneys—those who present at oral argument. I apply insights from the literature on attorney credibility to the context of law clerks and analyze whether women enjoy greater credibility and influence in cases involving sex discrimination and abortion. I find that women influence their justice’s vote on the merits, but this influence is conditional on the number of women a justice hires and the justice’s ideology. This finding is robust to accounting for potential spurious factors and to balancing covariates via matching. This analysis has implications for how the justices acquire and use information from their environment to aid in their decision making.
While many studies have examined party capability theory, few have empirically examined the potential causal mechanisms underlying the theory. We do this by combining quantitative analyses with qualitative data drawn from interviews with over 60 US courts of appeals judges. We find that the “haves,” or repeat players, hire better lawyers and that these lawyers independently contribute to the success of the repeat players. We also find that the advantages of the haves extend to all parties, though to a lesser extent than the advantages enjoyed by the US government. These results remain robust after controlling for ideology.
For most of their history, the U.S. courts of appeals have toiled in obscurity, well out of the limelight of political controversy. But as the number of appeals has increased dramatically, while the number of cases heard by the Supreme Court has remained the same, the courts of appeals have become the court of last resort for the vast majority of litigants. This enhanced status has been recognized by important political actors, and as a result, appointments to the courts of appeals have become more and more contentious since the 1990s. This combination of increasing political salience and increasing political controversy has led to the rise of serious empirical studies of the role of the courts of appeals in our legal and political system. At once building on and contributing to this wave of scholarship, The View from the Bench and Chambers melds a series of quantitative analyses of judicial decisions with the perspectives gained from in-depth interviews with the judges and their law clerks. This multifaceted approach yields a level of insight beyond that provided by any previous work on appellate courts in the United States, making The View from the Bench and Chambers the most comprehensive and rich account of the operation of these courts to date. © 2014 by the Rector and Visitors of the University of Virginia. All rights reserved.
This research addresses the central product of judicial work, written opinions. We investigate whether lower court judges are in the position to influence the interpretation of law at higher courts through their own opinions. An examination of 847 state supreme court cases in 1997 shows that the writings of lower court judges do serve as a foundational basis in a bottom-up method of opinion writing, which is conditioned by career factors, including previous jobs and being appointed to the state supreme court, and the judicial workload. This research expands our understanding of opinion writing by shedding light on the differences and similarities in the ingredients of judicial opinions at different court levels and corroborates the growing importance and effectiveness of lower court judges in the creation of law.
Despite a growing recognition of the influence of gender in the policymaking arena, few scholars have studied the relationship between lawyer gender and decision making on appellate courts. This article examines this relationship in the context of the United States Courts of Appeals, where there have been a greater number of female judges for a longer period of time. The results of the analysis suggest that, in the average Courts of Appeals case, judges are generally more likely to side with female attorneys, even in the absence of a “women's issue.” In addition, both male and female judges are equally supportive of female lawyers even when the circuit is not particularly gender diverse. However, circuit judges are less likely to support female attorneys in cases in which the circuit reverses the lower court, indicating a notable disadvantage for female advocates in the very cases in which advocacy might be most crucial at the circuit court level.
Focusing on litigators or amicus curiae, a significant amount of scholarship has examined the impact of information on Supreme Court decision making. Taking into account that justices have varying degrees of substantive expertise across issues, we model the interaction of justice expertise with these external sources of information. Specifically, we test whether justices are more likely to be influenced by attorney capability in cases where they have less substantive legal expertise. We also explore whether justices’ reliance on amici is conditional on their own expertise, as well as the overall quality of the litigants’ attorneys. As anticipated, this research finds that as the justice’s legal expertise increases, the influence of attorney capability tends to decrease. Moreover, as the expertise of the judge and/or the quality of the attorneys increase, the impact of amici tends to decrease.
Extralegal disparities between defendants sentenced to the death penalty and those who receive life without parole disturb even the most resolute advocates of capital punishment. Extensive bodies of research document extralegal factors influencing death penalty outcomes. Although studies largely focus on race and ethnicity, a growing body of research considers the impact of sex on the capital sentencing process. This paper reviews the extant research on the impact of the sex of the victim, defendant, attorney, juror, and judge on capital case outcomes. Women’s scarcity on death row and a previously documented “female victim effect” condemning male defendants who kill female victims, particularly for those committing crimes of sexual degradation, suggests that death row policies and their implementation chivalrously protect female defendants and victims. Conversely, a limited amount of research documents a “domestic discount,” or greater leniency for death-eligible crimes commonly victimizing women than for those victimizing acquaintances or strangers. Although opinion polls document greater support for the death penalty among men than women, juror sex inconsistently predicts sentencing outcomes in the literature. Minimal research on judge and attorney sex finds female judges more liberal in death penalty sentencing than male judges and inconclusive relationships between attorney sex and adjudication. Findings in the research on sex and death penalty outcomes support the existence of a “sex effect” and inform recommendations for future research to expand the body of literature.
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.
Recent work by Szmer, Sarver, and Kaheny (2010) exploring US Supreme Court decision making has suggested that lawyer gender might play a role in influencing judicial voting behaviour. Specifically, while women lawyers were not revealed to have a more difficult time winning cases before the US Supreme Court, the study did suggest they face a tougher challenge in gaining support from the more conservative justices on that bench. Here, we test whether women lawyers face similar challenges before the SCC. Our findings do not reveal any disadvantage for litigation teams with larger proportions of women and, in most instances, such teams have an advantage. Specifically, in our model of civil rights and liberties votes, litigation team gender had no bearing on individual SCC justice decisions. However, in a pooled model of all issues combined and in separate models of criminal and economic votes, SCC justices were more likely to side with litigation teams with larger proportions of women lawyers.
Previous research analyzing differences between men and women political elites has focused primarily on attitudinal differences, recruitment patterns, or background characteristics. In contrast, this research looks at possible behavioral differences. It examines the convicting and sentencing behavior of men and women judges in over 30,000 felony cases in "Metro City." In particular, it compares the behavior of men and women judges in convicting and sentencing male and female defendants. The findings indicate that women judges generally did not convict and sentence defendants differently than men judges did. However, women judges were considerably more likely to sentence female defendants to prison than men judges were.
Using unique data from University of Michigan Law School graduates, the authors examine sex differences in promotion to partnership among lawyers. The authors investigate three steps in the partnership process: (1) the decision to attrite early from private practice, (2) the attainment of partnership among those who do not attrite, and (3) determinants of partners’ earnings. Results show that men are less likely than women to leave private practice and more likely than women to become partners, even after controlling for a number of individual characteristics. Among partners, men earn significantly more than women. There is no evidence of a direct marriage or parenthood penalty, but lawyers who have taken time out of the labor force to attend to child care responsibilities are less likely to become partners and earn less if they do become partners. These findings provide strong indirect evidence that women lawyers face multiple glass ceilings in the workplace.
We investigate the origins of voters' expectations of greater female competency on ''compassion'' issues, such as dealing with poverty or the aged, and greater male competency on military and defense issues. We contrast two alternative explanations: gender-trait stereotypes, emphasizing a candidate's gender-linked personality traits; and gender-belief stereotypes, placing greatest importance on the differing political outlooks of male and female candidates. We test contrasting predictions from these two approaches with data from an experiment in which 297 undergraduate participants were randomly assigned to hear about a male or a female candidate with typically masculine or feminine traits. Overall, there was stronger support for the trait approach. Warm and expressive candidates were seen as better at compassion issues; instrumental candidates were rated as more competent to handle the military and economic issues. Moreover, masculine instrumental traits increased the candidate's perceived competence on a broader range of issues than the feminine traits of warmth and expressiveness. Finally, there was some limited support for the belief approach with gender-based expectations about the candidates' political views affecting their rated competency on compassion but not other types of political issues.
This book, authored by two leading scholars of the Supreme Court and its policy making, systematically presents and validates the use of the attitudinal model to explain and predict Supreme Court decision making. In the process, it critiques the two major alternative models of Supreme Court decision making and their major variants: the legal and rational choice. Using the US Supreme Court Data Base, the justices' private papers, and other sources of information, the book analyzes the appointment process, certiorari, the decision on the merits, opinion assignments, and the formation of opinion coalitions. The book will be the definitive presentation of the attitudinal model as well as an authoritative critique of the legal and rational choice models. The book thoroughly reflects research done since the 1993 publication of its predecessor, as well as decisions and developments in the Supreme Court, including the momentous decision of Bush v. Gore.
While theoretical justifications predict that a judge's gender and race may influence judicial decisions, empirical support for these arguments has been mixed. However, recent increases in judicial diversity necessitate a reexamination of these earlier studies. Rather than examining individual judges on a single characteristic, such as gender or race alone, this research note argues that the intersection of individual characteristics may provide an alternative approach for evaluating the effects of diversity on the federal appellate bench. The results of cohort models examining the joint effects of race and gender suggest that minority female judges are more likely to support criminal defendants' claims when compared to their colleagues on the bench, even after controlling for other important factors. This suggests that our understanding of judicial behaviors may be assisted by the inclusion of how individual characteristics overlap rather than examining those characteristics alone.
In this paper, we assess various influences on U.S. Supreme Court justices' behavior in cases involving judicial review of federal, state and local statutes. Focusing on challenges to the constitutionality of statutes considered by the Burger and Rehnquist Courts during the 1969 to 2000 Terms, we evaluate the impact of attitudinal, institutional, and contextual variables on individual justices' votes to strike or uphold statutes challenged before the Court. We find that the justices' ideological responses to the challenged statutes, the extent of amicus support for the statute, the support of the Solicitor General, congressional preferences, and the existence of a civil liberties challenge to the statute are all significantly related to the justices' votes to invalidate or uphold statutes. We also find that in the Rehnquist Court, conservative justices are less likely to strike state statutes, but more likely to strike federal laws than their liberal counterparts, while no similar "federalism" dimension emerges in the Burger Court. Indeed, in the Burger Court, a distinct pattern emerges with conservative justices more restraintist than liberal justices in both state and federal cases.
It was hypothesized that female leaders would elicit more negative nonverbal affect responses from other group members than male leaders offering the same initiatives. Male and female subjects participated in 4-person discussions in which male or female confederates assumed leadership. During the discussion subjects' nonverbal affect responses to the confederates were coded from behind one-way mirrors. Female leaders received more negative affect responses and fewer positive responses than men offering the same suggestions and arguments. Female leaders received more negative than positive responses, in contrast to men, who received at least as many positive as negative responses. The data demonstrate a concrete social mechanism known to cause devaluation of leadership, and thus support a more social interpretation of female leadership evaluations, in contrast to previous interpretations based on private perceptual bias. (PsycINFO Database Record (c) 2012 APA, all rights reserved)
The "prototype" of a set of exemplars is the most typical exemplar. The present recognition memory experiment with 22 undergraduates demonstrated memory bias toward both normative (previously learned) and novel prototypes. Lists of traits were presented during the acquisition and recognition phases. The lists varied in degree of similarity to a prototype list that was composed of either 6 positive traits (positive condition), 6 negative traits (negative condition), or 3 positive and 3 negative traits (novel condition). In each condition, the most typical exemplar of the set of acquisition lists was the prototype list, which was not presented during acquisition. As predicted, in all 3 conditions recognition confidence was a positive, linear function of similarity to the prototype list and was highest for the prototype list. Contrary to prediction, the slope of this linear "bias-toward-prototype" effect was not steeper in the 2 normative conditions (the positive and the negative conditions) than in the novel condition. Results suggest that prototype abstraction occurred and that a comparison-to-prototype process was an important determinant of recognition confidence. (21 ref) (PsycINFO Database Record (c) 2012 APA, all rights reserved)
The issue of the equitable representation of women in political bodies has concerned both political activists and political scientists for a number of years. Greater representation of women is predicted to have a number of effects on public policy and social interactions. Among these effects are changes in policy priorities, improved system legitimacy and a change in the political culture as old stereotypes disappear and women come to be viewed as the equals of men in the political sphere. The view has been that if women were to get into office, they could prove themselves effective. Therefore societal views on women as political leaders would change, and old stereotypes as to their limited competence would break down. The hope of many is that as women politicians become commonplace, a country's political culture would change so that gender is no longer a relevant consideration in evaluating political leaders. This Note directly tests the assertion that increased participation by women leads to this genderneutral view of political leaders.
This analysis attempts to unravel competing explanations of collaborative leadership styles of state legislative committee chairs. Specifically the paper considers the influence of community or volunteer experience, gender, and institutional variables. The data show that women chairs are more likely than their male peers to cite as valuable the leadership skills and experiences that they gain through community and volunteer experience. Compared to their male colleagues, women committee chairs on average also report a greater reliance on collaborative strategies in the management of their committees. Prior community or volunteer experience has little or no direct effect on collaborative styles. In contrast, institutional factors have a much stronger and countervailing influence. Legislative professionalization produces a strong negative effect on collaborative style. Results suggest that conformity to institutional norms may be a more compelling influence than prior community experience. The analysis also points to the gendered nature of organizational leadership with men's and women's styles showing different associations to style depending on the number and power of women in a legislature.
The U.S. Supreme Court is a public policy battleground in which organized interests attempt to etch their economic, legal, and political preferences into law through the filing of amicus curiae ("friend of the court") briefs. In Friends of the Supreme Court: Interest Groups and Judicial Decision Making, Paul M. Collins, Jr. explores the influence of organized interests on the justices' decision making, including their votes in cases and their decisions to author concurrences and dissents. The author develops novel theories to explain how interest groups might shape judicial choice, building on intuitions derived from disciplines as diverse as law, marketing, political science, and social psychology. Utilizing rigorous empirical analyses, Collins provides unequivocal evidence that interest groups play a significant role in shaping the choices justices make, although not necessarily in a manner that is consistent with prevailing views of how the justices render their decisions. The result is a theoretically rich and empirically rigorous treatment of decision making on the nation's highest Court that informs our understanding of interest group litigation, as well as the legal and attitudinal models of judicial choice.
Using unique data from University of Michigan Law School graduates, the authors examine sex differences in promotion to partnership among lawyers. The authors investigate three steps in the partnership process: (1) the decision to attrite early from private practice, (2) the attainment of partnership among those who do not attrite, and (3) determinants of partners' earnings. Results show that men are less likely than women to leave private practice and more likely than women to become partners, even after controlling for a number of individual characteristics. Among partners, men earn significantly more than women. There is no evidence of a direct marriage or parenthood penalty, but lawyers who have taken time out of the labor force to attend to child care responsibilities are less likely to become partners and earn less if they do become partners. These findings Provide strong indirect evidence that women lawyers face multiple glass ceilings in the workplace.
The authors examined perceptions of attorney's credibility and case verdict as a function of attorney's gender. Results indicated that women rated the female attorney as less intelligent, less friendly, less pleasant, less capable, less expert, and less experienced than the male attorney, and mock jurors demonstrated a preference for retaining a male attorney rather than a female attorney as their own personal counsel.
The central focus of this investigation is the effect of litigation resources on the success of appellants appearing before the United States Courts of Appeals. The analysis parallels the earlier study by Wheeler et al. (1987) of who wins in state supreme courts. The findings are that litigation resources are much more strongly related to appellant success in the courts of appeals than in either the United States or state supreme courts. Upperdog litigants win much more frequently in the courts of appeals in both published and unpublished decisions of the courts of appeals even after controls are introduced for partisan and regional effects and the differences among types of cases.
Theory: Group identity and issue salience theories are used to explore the impact of candidate gender on voting behavior in congressional elections. Hypotheses: Support for women congressional candidates will be higher among voters who share certain demographic and attitudinal characteristics. Methods: Logistic analysis of the 1992 American National Election Study data is conducted. Results: Women voters are more likely to support women House candidates than are men and are also more likely to use gender-related issue positions in determining their vote choice when there is a woman candidate. In Senate elections, issues are much more important to determining vote choice than in House elections. Here women again exhibit distinctly different issue concerns than men and employ a greater number of gender-related issue concerns in their evaluations.
There are two distinct bodies of research on candidate gender. The first argues that voters are not biased against female candidates. These studies are usually based on aggregate analyses of the success rates of male and female candidates. The second body of research argues that voters employ gender stereotypes when they evaluate candidates. These studies are usually based on experiments which manipulate candidate gender. This study seeks to unite these literatures by incorporating gender stereotypes and hypothetical vote questions involving two candidates in one model I argue that many voters have a baseline gender preference to vote for male over female candidates, or female over male candidates. Using original survey data, I find that this general predisposition or preference can be explained by gender stereotypes about candidate traits, beliefs, and issue competencies, and by voter gender. I also argue that this baseline preference affects voting behavior.
This article addresses the debate about the significance of gender differences by analyzing patterns of interaction between lawyers and clients. It examines features of the language of lawyers and clients associated with the dominance and difference paradigms that are at the center of feminist theory. Talk characterized by dominance includes the control of discourse space, interruptions, topic control, and challenges. Features associated with a particular female "voice" include cooperative responses, affiliative requests, indirection, politeness, and the expression of emotion. Results show that women lawyers' talk is role behavior rather than gendered behavior, with little difference between men and women lawyers. Clients' speech is tempered by gender considerations, with both men and women clients expressing greater deference to men lawyers and women clients expressing cooperation and solidarity with all lawyers. It was mainly in reference to the occasional willingness to grant legitimacy to the clients' emotional concerns, as well as the stress on professional identity, that marked women lawyers' specific style of lawyering.
The past several decades have witnessed tremendous growth in the number of professional representatives in the Washington community. Despite a wealth of research that testifies to the importance of these experts in the legislative and executive branches, we know comparatively little regarding sophisticated representation in the judicial context. Is there an identifiable group of specialized representatives in the U.S. Supreme Court? Under the rubric of network theory, I examine the bar of the Court and the patterns of association within it. With survey data from lawyers who participated in Supreme Court litigation during the 1986 term, I develop a predictive model that suggests that the lawyers in the Court are a discrete collection of representatives, strongly anchored in Washington, DC. While many are connected through legal education, geography, and generational affinity, the core of that group--former law clerks to the justices, alumni of the Solicitor General's Office, and the lawyers of the leading law firms in Washington--are the prominent experts within that network.
Bein alive & bein a woman & bein colored is a metaphysical dilemma.
Many hypothesize that the election of more women to the U.S. Congress is more than simply an issue of equity, but will make a substantive policy difference. I test this hypothesis by analyzing the voting records of all representatives in the 103d Congress on a set of women's issues. It is my premise that women will not necessarily exhibit a more liberal ideology than their male counterparts on all issues; however, the more directly an issue affects women, the more likely it is that women will vote together across party lines. The results of regression analysis on the composite score of women's issue votes indicate that gender exerts a significant and independent effect on voting for women's issues in the face of controls for other major influences on congressional voting These influences include constituency factors, party, personal characteristics, and ideology. Interaction terms for gender by party indicate that much of the impact of gender is due to the influence of Republican women. Logit analysis of the individual votes demonstrates that the gender of the representative was most significant on votes that dealt with abortion and women's health. The influence of gender was overwhelmed by other factors such as party, ideology, and constituency concerns on votes that were less directly related to women, such as education.
When analysts adopt surrogates of actors' political preferences for purposes unanticipated
by the inventors of those measures, they often stretch (but not explicitly assess) the range of
reliability and validity. The consequences pushing measures beyond their intended
purposes may significantly impact research findings, as well as the conclusions drawn from
those findings." Methodological audit" of measures developed by Segal and Cover (1989) to
represent the political preferences of justices on the United States Supreme Court. Mainly ...
Conventional wisdom in judicial politics is that oral arguments play little if any role in how the Supreme Court makes decisions. A primary reason for this view is that insufficient evidence exists to test this hypothesis. Thus, I ask, do Supreme Court justices use information from oral arguments that may help them make decisions as close as possible to their preferred goals? My answer is straightforward: An investigation of the oral arguments and the Court's majority opinions in a sample of cases from the Burger Court era shows that the Court gathers information during oral arguments and then uses this information when making substantive policy choices. This finding has clear implications for the way in which scholars view the Supreme Court's decision-making process, as it suggests that the accepted view of where oral arguments fit into this process is far from accurate.
This essay attempts to discern some of the general features of a legal system like the American by drawing on (and rearranging) commonplaces and less than systematic gleanings from the literature. The speculative and tentative nature of the assertions here will be apparent and is acknowledged here wholesale to spare myself and the reader repeated disclaimers.
I would like to try to put forward some conjectures about the way in which the basic architecture of the legal system creates and limits the possibilities of using the system ;as a means of redistributive (that is, systemically equalizing) change. Our question, specifically, is, under what conditions can Iitigation be redistributive, taking litigation in the broadest sense of the presentation of claims to be decided by courts (or court-like agencies) and the whole penumbra of threats, feints, and so forth, surrounding such presentation.
Scores of political science studies reveal that female candidates fare as well as their male counterparts. But the percentage of citizens willing to support a woman presidential party nominee has significantly decreased over the last two years. Based on the results of a Knowledge Networks national random sample survey, this article offers the first empirical examination of the manner in which the atmosphere of war might affect women candidates’ electoral prospects. I find that citizens prefer men’s leadership traits and characteristics, deem men more competent at legislating around issues of national security and military crises, and contend that men are superior to women at addressing the new obstacles generated by the events of September 11, 2001. As a result of this gender stereotyping, levels of willingness to support a qualified woman presidential candidate are lower than they have been for decades. These findings carry broad implications for the study of women and politics. If women fare as well as men when the political climate is dominated by issues that play to women’s stereotypical strengths, but are disadvantaged when “men’s issues” dominate the political agenda, then we must reconsider the conclusion that winning elections has nothing to do with the sex of the candidate.
While the facts and the attendant law are essential components of understanding litigation outcomes, extralegal factors, such as the experience of the attorney representing each party, are also significantly related. The authors assert that the capability of the attorney, as evidenced in previous litigation success, is more significant than experience alone. They test this assertion for the South African appellate court from 1970 to 2000. After controlling for the effects of a number of variables, the results suggest that the previous success of the advocate is a far better predictor of litigation outcomes than previous experience, litigant status, or court ideology.
Do parties' briefs influence the content of Supreme Court opinions? The author contends that the parties, through the briefs submitted on the merits, have the ability to influence the content of opinions and, consequently, have the ability to influence the law. Utilizing plagiarism software, the author compares the parties' briefs with the majority opinion of the Court. The results indicate that there is a connection between the language of the parties' briefs and the language of the opinions, which means that parties have the potential to influence the law.
While a great deal of research documents women elected officials’ more liberal policy attitudes and concludes that increased women’s representation will produce more liberal policies, I argue that the influence of gender and ultimately the influence of women’s representation remain unclear. First, constituency demands may explain observed gender differences. Second, the influence of gender may vary among legislators. I find that although constituency interests do have a significant effect, women continue to express significantly more liberal welfare policy preferences than men. In addition, I find that gender differences in legislators’ preferences are greater among Republican and conservative legislators than among Democratic and liberal legislators. Consequently, predicting the impact of increasing women’s representation on policy is likely to be more complex than previously thought.
This analysis demonstrates how political ambition theory can be applied to women who have served in the U.S. House of Representatives: under what conditions do political women manifest discrete, static, and progressive ambition? Our database includes all women elected to the House between 1916 and 2000. In differentiating between discrete and static ambition, we find that among congressional widows, there are measurable differences between those who seek reelection and those that step down, with independent political experience and working partnerships in their husband’s political careers being especially important. In addition, we show that women in the House are strategic when deciding whether to run for the Senate. Progressive ambition—the decision to run for higher office—flows from a calculus that incorporates the probability of winning, the value of the office, and the costs of running. As such, it appears that the women of the House respond to the same strategic forces as their male counterparts.
Many hypotheses have been proposed to explain why women remain underrepresented in Congress. One of those hypotheses is that some voters have blatant prejudices against women politicians, while others hold stereotypes about men and women politicians that favor men. In contrast, others claim that women candidates for Congress actually have an advantage in running for office because voters prefer women politicians. We test those hypotheses using pooled 1988, 1990, and 1992 National Election Studies data and the pooled 1988-1992 Senate Election Study and building on Krasno's (1994) model of voter choice in House and Senate elections. We find evidence that some voters prefer women candidates in House races, but not in Senate races. The advantage for women candidates in races with a challenger and incumbent is slight and can be attributed to the strong support of well-educated women voters. An advantage for women candidates is more pronounced in open-seat contests. In open-seat races, women voters, regardless of their education levels, more strongly support women candidates. Overall, candidate sex was not significant to male voters.
A common refrain among Supreme Court watchers is that today it is law clerks who are primarily responsible for drafting the justices’opinions. We search for traces of clerical drafting—identifiable stylistic “fingerprints”—in the first drafts of the opinions that two justices, Lewis F. Powell Jr., and Thurgood Marshall, circulated during the 1985 term of the Court. These two justices relied on their clerks to a different degree: Powell’s office procedures called for him and several clerks to participate in writing each opinion, whereas Marshall reputedly delegated most writing responsibilities to his clerks. We do detect the clerks’ distinct styles in the justices’ opinions, though; as expected, the fingerprints are clearer for Marshall’s clerks than for Powell’s. We also find differences across opinion type, with the clerks’unique style most easily discernible in separate opinions, as opposed to majority opinions.
A schematic model of political belief systems based on recent research in social and cognitive psychology is developed. We show that schema theory has the ability to bridge the gaps among the major competing approaches to the study of mass belief systems as well as provide direction for new research on the structure and functioning of political beliefs. An initial test of the theory, done with Q methodology, is reported and the results provide consistent support for the general predictions of schema theory as applied to political beliefs.
President Clinton, like Carter before him, has made a concerted effort to appoint women and minorities to the federal bench in an effort to make the courts appear representative of American society. The question remains, does this symbolic representation translate into substantive or policy representation on the bench? This analysis is based on data colected about pairs of Clinton's district court appointees who are similar in a number of respects but different in their race or gender. The rulings by these pairs, made in cases involving a number of issues expected to preent racial and gender differences, were compared to determine whether Clinton's nontraditional district court judges provided substantive as well as symbolic representation. The results indicate that these judges do not provide policy representation to their respective groups, nor do they appear particularly liberal or activist, as many of Clinton's political oppnents have alleged.
It is commonly assumed that Supreme Court justices' votes largely reflect their attitudes, values, or personal policy preferences. Nevertheless, this assumption has never been adequately tested with independent measures of the ideological values of justices, that is, measures not taken from their votes on the Court. Using content analytic techniques, we derive independent and reliable measures of the values of all Supreme Court justices from Earl Warren to Anthony Kennedy. These values correlate highly with the votes of the justices, providing strong support for the attitudinal model.
Analyses of the National Longitudinal Bar Passage Study (N = 27,478), demonstrate that law schools enlarge entering academic differences across race, age, disability, and socioeconomic origins rather than reduce them, and that academic differences in turn impact bar passage. Such differences cannot be reduced to (1) academic preparation, effort, or distractions; (2) instructional or law school-type characteristics; (3) social class; or (4) acceptance of an elitist legal ethos. Rather, results suggest that (1) women, minorities, and other atypical law students confront stigmatization throughout legal education;(2) for women (entering law school in 1991), this stigmatization is new, rejected, and consequently unassociated with law school outcomes; (3) for minorities, this stigmatization is continuous with prior socialization, making resistance difficult and consequent impact sizable; and (4) for other atypical law students, this stigmatization varies with visibility of difference, as do resistance and impact. Implications for social stigma theory and legal education are discussed.
The concept of issue salience has figured prominently in many studies of American political life. Long lines of research have taught us that both citizens and political elites may respond differently to issues that are salient to them than to those that are not. Yet analysts making such claims elite actors face a fundamental problem that their counterparts in mass behavior do not: they cannot survey, say, members of the Supreme Court to ascertain those cases that are especially salient to the justices. Rather, scholars must rely on surrogates for issue salience-surrogates that are fraught with problems and that have led to disparate research results. Accordingly, we other an alternative approach to measure issue salience for elite actors: the coverage the media affords to a given issue. We argue that this approach has substantial benefits over those employed in the past. Most notably, it provides a a reproducible, valid, and transportable method of assessing whether the particular actors under investigation view an issue as salient or not. In making the case for our measure we focus on Supreme Court justice but we are sanguine about its applicability to other political actors.
The evidence on the effects of a defendant's race and sex on juror verdicts prompted the current study on the influence of the attorney's race and sex on juridical decisions. In a mock jury trial, 127 subjects evaluated the guilt or innocence of a defendant accused of murder. The attorney's race (black or white) and sex (male or female) were systematically varied. Results indicated a significant main effect for the influence of the race of the attorney on jurors' verdicts. It was revealed that defendants represented by black attorneys are more likely to be found guilty than defendants represented by white attorneys. The findings, however, failed to reveal a significant main effect for attorney sex or a significant sex by race interaction effect on jurors' perceptions of the defendant's guilt. It was concluded that future research should consider the effects of the race of attorneys on juror verdicts.
Forty-nine residents of “Middletown” and 121 students in the roles of jurors viewed videotapes of an abbreviated child abuse trial, in which the accused was portrayed by a defense attorney as religious or in which his religious character was not used as a defense. Subjects in the former condition were more likely to convict and recommend longer sentences. There was some evidence to indicate further that religious jurors were even more severe in their judgments of the defendant when religion was used as a defense.
In a modern democracy, all citizens theoretically are guaranteed an equal opportunity at political representation. This paper shows that democratic theory does not always hold in practice in the United States. Discourse analysis is applied to the language used in the 1990 hearings conducted by the U.S. Senate Committee on the Judiciary on the nomination of Judge David H. Souter to be Associate Justice of the Supreme Court. Results show that while women are noticeably present as witnesses in hearings, they are not treated on an equal footing with men. Women's access to the political debate is limited, because they are given proportionally less time to speak than male witnesses. Further, empirical measures indicate that the effectiveness of women's testimony is undermined by senators' responses. Although women utilize what is defined as masculine language to compete within a male-dominated institution, gendered expectations can prevent them from being treated as authoritative witnesses.
This paper examines state high court decision making on sex discrimination cases for the period 1971–81. Using logistic regression, several policy models drawn from the comparative state policy and judicial behavior literatures are employed to predict court votes on sex discrimination appeals. The final model emphasizes the importance of policy type, selection system, court reputation, sex of the appellent, and the presence of at least one woman on the court.
Considerable debate has been generated regarding the impact of President Carter's appointment of record numbers of female and minority judges to the lower federal courts. Using a “matched pair” research strategy, this study empirically examines the policy and process consequences of adding large numbers of nontraditional judges to the U.S. District Court bench. Few differences were discovered between black and white judges. However, female judges tended to be less supportive of personal rights claims and minority policy positions and more sympathetic to economic regulation than were their male counterparts. Female judges displayed a distinct pattern of deferring to positions taken by the government. No substantial male/female or white/black differences emerged on three measures of decision-making quality.
This study examines the possibility that the news media, by covering male and female candidates differently, may influence the success of female candidates. A content analysis of newspaper coverage of U.S. Senate campaigns shows that male and female Senate candidates are covered differently in the news. An experiment was conducted to explore the consequences of these differences in coverage, as well as the significance of the candidates' gender, for evaluations of Senate candidates. The experimental results suggest that gender differences in coverage tend to advantage male candidates. For instance, candidates who are covered like male candidates in the news are considered more viable than candidates who are covered like female candidates. Sex stereotypes, on the other hand, can advantage female candidates. Female candidates are viewed as more compassionate and more honest than identical male candidates. The findings from this study support the hypothesis that the mass media may influence a woman's chances of success at the polls. Male and female candidates are covered differently in the news and these differences often produce negative assessments of women candidates.
To what extent is legal change influenced by judicial politics? This question, as initially posed by legal realists, provided the stimulus for much of the early study of the judicial process. Although judicial scholars have since explored the impact of judicial policy views, the litigation environment, and the political environment, no systematic analysis of the impact of these factors on legal change has been undertaken. I develop a measure of legal change and use it to test the impact of judicial politics by examining search and seizure cases decided by the Supreme Court between 1962 and 1989. Using a multinomial logit model, I find that several aspects of the judicial process, particularly the Court's political composition, legal constraints, litigant resources, attorney experience, amicus support, and presidential preferences, affect the direction of legal change.
How important are lawyers in the decision making of the U.S. Supreme Court? Although legal expertise has long been assumed to benefit certain litigants, the frequency with which lawyers appear before the Court has not been directly measured. In this article, I argue that, quite apart from the status of different litigants, lawyers can be viewed as repeat players who affect judicial outcomes. Using data from the U.S. Supreme Court Judicial Data Base with data from the United States Reports, I propose and test a theory in which the informational needs of the Court are better met by more credible litigators. Thus, for example, a more experienced lawyer significantly raises the probability of a party's success. The findings testify to the efficacy of experienced counsel, irrespective of the parties they represent.
This article examines the impact of lawyer capability on the decisionmaking of the Supreme Court of Canada (SCC). Extending prior attorney capability studies of U.S. judicial decisionmaking, we test three lawyer variables: prior litigation experience, litigation team size, and Queen's Counsel designation. We find that the first two variables have a statistically significant and positive relationship with the SCC's decisions in non-reference-question cases from 1988 to 2000. Moreover, this relationship persists even after controlling for party capability, issue area, and judicial policy preferences.
An audiovisual slide-show presentation of a murder trial was used to examine the effects of group deliberations on juror's responses. Sex of defense attorney and race of defendant were systematically varied in the mock trial. Verdicts were assessed immediately following the trial presentation (before group deliberations) and immediately following group deliberations. Neither sex nor race significantly affected distributions of individual juror's predeliberation verdicts. Following group deliberations, however, an effect of attorney's sex emerged in both jury (group) verdicts and in individual, postdeliberation verdicts. Jurors in the male defense attorney conditions were more likely to vote not guilty following deliberations than were jurors in the female defense attorney conditions. This effect is discussed in terms of group shift.
For many years scholars have fit measurement models to voting data to recover the latent ideal points of various actors. Poole and Rosenthal (1997), for example, provide a number of di erent measurement strategies for House members and Senators; Clinton et al. (2004) o er a Bayesian alternative. Martin and Quinn (2002) fit a dynamic item response theory model which provides time-varying ideal points for Supreme Court justices. Can these estimated ideal points be used as explanatory variables in subsequent (oftentimes called second-stage) regression models? In this note we answer this question. Our discussion focuses primarily on the Martin and Quinn (2002) scores for Supreme Court justices, but the theoretical arguments are equally applicable to other modeling strategies. We begin by discussing the Martin-Quinn approach, and presenting the scores. We then outline possible concerns about using the measures, followed by our thoughts about those concerns. We conclude with a set of best practices for the use of Martin-Quinn scores.