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 The authors would like to thank Marc Rosenblum, Kenneth Manning, and Brad Wright for the helpful comments on various versions of the manuscript, though any limitations in the article are purely the responsibility of the authors.

The Role of Nominee Gender and Race at U.S. Supreme Court Confirmation Hearings

“…Feldman and Gill () find that female justices on the Court are interrupted more frequently by fellow justices than are their male colleagues, and Jacobi and Schweers () find that female justices are interrupted at disproportionate rates by male lawyers. Szmer et al () 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 ).…”

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“…Szmer et al () also find that, in addition to this ideological congruence effect, conservative justices have a 0.7% lower likelihood of supporting the woman attorney's legal position than liberal justices.…”

High Court Recruitment of Female Clerks: A Comparative Analysis of the U.S. Supreme Court and the Supreme Court of Canada

“…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. 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.…”

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“…See Kathy Ferguson, The Feminist Case Against Bureaucracy (1984). funds as they are doled out, and managing the myriad offices of their department (Benjamin 2001;Rubin 1993;Martin 1991 (Szmer et al 2010). Like a candidate, a Cabinet secretary is interested in currying good favor with his or her constituencies in order to receive the rewards of political office (Shomer 2009;Fox and Oxley 2003), election to office for the candidate, and maximized budget authority for the bureaucrat.…”