an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
When the Court handed down its decision in the partial birth abortion case, commentators were quick to draw attention to the more conservative 5-4 majority created by Justice O'Connor's departure. What they have all but ignored is the other "new" majority, the 8-person male majority.
Perhaps the neglect reflects a belief that the justices' sex is irrelevant to their decisions. Justice O'Connor may have been disappointed that she was succeeded by a man—recall her famous quip about John Roberts: "He's good in every way, except he's not a woman." But, at least in academic circles, O'Connor is just as famous for rejecting theories of gendered judging. "There is simply no empirical evidence," she once said, "that gender differences lead to discernible differences in rendering judgment."
That's no longer the case. Empirical evidence is indeed mounting that ``gender difference [is] a significant factor in judicial decision-making," as the first female justice on the Canadian Supreme Court, Bertha Wilson, aptly put it. Our new study of the U.S. circuits finds that when males serve on a panel with a female judge, the men are significantly more likely to rule in favor of the party alleging discrimination. This "panel effect" is so substantial, persistent, and consistent that it may come as a surprise even to those scholars who have long posited the existence of gendered judging. Another study, this one of state high courts, may be even more illuminating. It demonstrates that the greater the proportion of female justices, the higher the likelihood that the court will apply a standard of law favorable to sex discrimination plaintiffs.
Neither study contends that female judges speak "in a different voice" in all legal areas, or that they consistently vote differently from their male colleagues. But their presence on the bench seems to influence how men structure the adjudication of claims touching on (what some political scientists term) "women's issues." No doubt abortion falls into this category.
When Ronald Reagan was running for the presidency in 1980, he pledged to appoint a woman to the Court: "I am announcing today that one of the first Supreme Court vacancies in my administration will be filled by the most qualified woman I can find..." In light of the new empirical findings, in light of the appointments of Samuel Alito and John Roberts, perhaps the time has come for today's presidential candidates to make the same commitment.
Has any similar study ever been done with race? I've always assumed that, for example, the presence of Thurgood Marshall on the Supreme Court probably had some effect on the other Justices, beyond that simply of his legal positions (which were largely, though certainly not completely, already represented on the court by Brennan and Douglas).
In response to the question whether a similar study has ever been done with race: There have been several attempts over the past few decades to test the role that race plays in judging -- mostly in criminal and employment discrimination cases -- and those studies have found little or no effect of race. But Tom Miles and I have a new study that tests both the individual and panel effects of race in Voting Rights Act cases. Unlike these previous studies, we find quite substantial individual effects. And like Lee, we find substantial panel effects: the presence of a black judge on a panel deciding a VRA case substantially increases the likelihood that the white judges will find a violation of minority voters' rights. The paper is available at: http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=977271
The question is whether the presence of a woman or black makes other judges more likely to see discrimination that is present or whether it makes them more likely to find discrimination that isn't present. I suppose it's possible that both are true. I can't see how this study shows that having more women and minority judges improves things, though. You need to have a prior judgment about whether the finding of discrimination in the particular cases is the correct judgment if you're going to see this as good, bad, or neutral (or mixed).