Women Lawyers before the Supreme Court of Canada

Abstract

American and Canadian scholars have found significant evidence of gender bias in the legal system, including the legal profession~ABA, 2007; studying lawyer gender bias in the US have recently inquired as to whether gender bias against women lawyers has crept into the decisional processes of the US Supreme Court~USSCT!. Specifically, a study conducted by Szmer and colleagues~2010! indicates that women lawyers are not disadvantaged in finding success on case outcomes but does suggest that conservative justices are less likely to side with parties represented by women attorneys. On the other hand, the study also concluded that the justices are more likely to side with the position advocated by women lawyers in cases raising "women's issues"~Szmer et al., 2010: 27!. Acknowledgments: We wish to thank Frank Collucci and the anonymous reviewers for CJPS for their comments and suggestions for improving the manuscript and Donald Songer for providing much of the data employed in the study. We also thank Jacqueline Baldwin for providing a French translation of the abstract.

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

“…While women occupy an increasing number of seats on the federal bench (Slotnick et al 2017) and constitute roughly 50 percent of recent law school graduates (American Bar Association 2016), relatively few women argue at the Supreme Court (Sarver, Kaheny, and Szmer 2008). Because of the low numbers of women at the Court, gender remains salient during oral arguments (e.g., Kaheny, Szmer, and Sarver 2011; Shih et al 1999). Under these conditions, it is likely gender norms will be enforced.…”

“…These are, at first blush, nongendered markers of quality; however, female attorneys are underrepresented at the Supreme Court Bar (Sarver, Kaheny, and Szmer 2008) and in the law clerk corps (Kromphardt 2017). Thus, it is tempting to say that greater representation of women at the Court will lead to more success as they will accrue greater experience and presumably be hired by better firms (e.g., Kaheny, Szmer, and Sarver 2011; Kenney 2002). However, there is little to assess this expectation with since, save for a few studies, gender is conspicuously absent from the predictors of oral argument attorney success.…”

“…The small literature on gender and attorney success indicates female attorney success depends in large part on the institutional context of the court in question. Context manifests as the number of women on the bench (Collins, Manning, and Carp 2010; Scheurer 2014; Szmer, Christensen, and Kaheny 2015), at the bar (Kaheny, Szmer, and Sarver 2011), and in the law clerk corps (Kaheny et al 2015). In a highly gendered environment, such as the Supreme Court Bar, gender is a salient feature that shapes outcomes and evaluations (e.g., Eagly and Carli 2007; Shih et al 1999).…”

“…As the gendered context of a given institution becomes more equitable, gender becomes less salient and women are more successful. For instance, female attorneys fare better than their male counterparts at the Supreme Court of Canada where approximately 50 percent of all attorneys and law clerks are women (Kaheny, Szmer, and Sarver 2011; Kaheny et al 2015). Shifting to the American context, Szmer, Sarver, and Kaheny (2010) note female attorneys at the Supreme Court are evaluated more harshly by conservative justices in some issue areas.…”

Intersecting Disadvantages: Race, Gender, and Age Discrimination Among Attorneys*

“…Studies of juror reactions to female attorneys point to gendered perceptions of lawyers who influence assessments of capability, expertise, and intelligence (Sumoski, ; Hahn and Clayton, ; but see Cohen and Peterson, ; Sigal et al., ). However, the research provides mixed evidence on the question of whether female advocates are less successful in the courtroom (Szmer et al., ; Szmer, Saver, and Kaheny, ; Kaheny, Szmer, and Sarver, ).…”