Trading Liberties for Security: Groupthink, Gender, and 9/11 Effects on U.S. Appellate Decision-Making

Abstract

Does groupthink affect court deference to the government in times of heightened security concerns? We argue that male judges serving in homogeneous panels in federal appellate courts modified their behavior post-9/11, but that the presence of a female on the panel mitigated these effects. Using data on the U.S. Court of Appeals from 1978 to 2008 in search-and-seizure cases, we argue that women can safeguard against groupthink effects that otherwise trend toward a more deferential, less rights-oriented approach in times of heightened security. Our findings suggest women mitigate their male colleagues’ shift toward more deferential decisions by affecting panel outcomes that are more consistent with peacetime decisions. These results suggest the important role women exert in collegial panels beyond direct voting patterns. In times of heightened security concerns, panel diversity can avoid groupthink that might stand in the judiciary’s way of providing an effective check on executive and legislative power.

Gender, Diversity, and the United States Judiciary

“…12 Judge gender not only influences judicial outcomes, but it can also affect opinion construction and the decision-making of other judges on the bench. 13,14,15,16 To achieve true gender parity in the judiciary, gender and gender-race intersectional disparities must be addressed at all levels of the legal pipeline.…”