The New 8-Person Majority

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.