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

Date01 September 2020
Published date01 September 2020
Subject MatterArticles
Political Research Quarterly
2020, Vol. 73(3) 596 –608
© 2019 University of Utah
Article reuse guidelines:
DOI: 10.1177/1065912919847001
When Sarah Weddington argued Roe v. Wade1 on behalf of
Jane Roe, her physical appearance became a central fea-
ture of the case for Court observers. Initially, Weddington
wore her hair down. When the Court ordered reargument,
she wore her hair in a bun. Since gender norms hold hair
worn down is feminine, speculation swirled she wore her
hair up in an effort to appear more persuasive to the Court;
in reality, her hair was wet and she did not have a hair
dryer (Weddington 1993). Weddington’s experiences
underscore how gender norms, subconscious ingrained
expectations about how men and women should act (Jones
2016; Rudman and Glick 1999, 2001), shape outcomes
across a host of contexts (e.g., Karpowitz and Mendelberg
2014). While gender norms can involve practically any
aspect of interaction, including mannerisms and appear-
ance, scholars frequently focus on the use of language
(e.g., Gleason, Jones, and McBean 2019; Jones 2016;
Pennebaker 2011; Yu 2014). Importantly, language lies at
the heart of an attorney’s job.
The Supreme Court extols attorneys to emphasize
“legal theory” over “facts and emotion” in their arguments
(O’Connor 2013, 91). This seems intuitive: an impas-
sioned jury argument has little place before an appellate
court focused on the nuance of the law. The Court sets the
professional norm that attorneys avoid emotion. This is
not an issue for male attorneys since the markers of a good
man and a good attorney are synonymous; arguments (and
men) should be forceful and persuasive. By contrast, this
professional norm is problematic for female attorneys
because gender norms hold women should use more emo-
tional communication (Chaplin 2015; Fischer and
LaFrance 2015). This places female attorneys in a difficult
balancing act where they must navigate competing profes-
sional and gendered expectations (Rhode 1994). Violating
expectations, either professional or gendered, can nega-
tively shape decision-makers’ calculus even if only at the
subconscious level (Gleason, Jones, and McBean 2019;
Kathlene 2001). Faced with such a balancing act, women
tend to downplay their gender by adopting masculine
communication styles in professional contexts (Gleason,
Jones, and McBean 2017; Kanter 1977). However, by
eschewing gender norms, women often face sanction
(e.g., Biernat, Tocci, and Williams 2012).
While scholars have traditionally dismissed oral argu-
ments as a formality (e.g., Rohde and Spaeth 1976), recent
work notes they can shape outcomes both in terms of the
justice vote and the content of the resulting opinion (T. R.
847001PRQXXX10.1177/1065912919847001Political Research QuarterlyGleason
1Texas A&M University-Corpus Christi, USA
Corresponding Author:
Shane A. Gleason, Department of Social Sciences, College of Liberal
Arts, Texas A&M University-Corpus Christi, 6300 Ocean Drive, Unit
5826, Corpus Christi, TX 78412-5826, USA.
Beyond Mere Presence: Gender
Norms in Oral Arguments at
the U.S. Supreme Court
Shane A. Gleason1
Women are less successful than their male counterparts at Supreme Court oral arguments under certain circumstances.
However, existing work relies on mere presence rather than on any action female attorneys take in their argument.
Drawing on recent work that stresses gender is performative, I argue success for women at oral arguments is tied to
conformance with gender norms, subtle and unconscious expectations of how men and women should communicate.
Via a quantitative textual analysis of the 2004–2016 terms, I find attorneys are more successful when their oral
arguments are more consistent with gender norms. Specifically, male attorneys are rewarded for using less emotional
language whereas female attorneys are successful when using more emotional language. This study represents a more
nuanced and performative understanding of gender at oral arguments. These results raise normative concerns about
how effective women are at the Supreme Court.
gender norms, oral arguments, U.S. Supreme Court, attorneys

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