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

• Date: 01 September 2020
• Published date: 01 September 2020
• DOI: 10.1177/1065912919847001
• Subject Matter: Articles

https://doi.org/10.1177/1065912919847001

Political Research Quarterly

2020, Vol. 73(3) 596 –608

© 2019 University of Utah

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DOI: 10.1177/1065912919847001

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Article

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

research-article2019

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.

Email: shane.gleason@tamucc.edu

Beyond Mere Presence: Gender

Norms in Oral Arguments at

the U.S. Supreme Court

Shane A. Gleason1

Abstract

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.

Keywords

gender norms, oral arguments, U.S. Supreme Court, attorneys