The Role of Gender Norms in Judicial Decision-Making at the U.S. Supreme Court: The Case of Male and Female Justices

Date01 May 2019
Published date01 May 2019
Subject MatterArticles
American Politics Research
2019, Vol. 47(3) 494 –529
© The Author(s) 2018
Article reuse guidelines:
DOI: 10.1177/1532673X18766466
The Role of Gender
Norms in Judicial
Decision-Making at the
U.S. Supreme Court:
The Case of Male and
Female Justices
Shane A. Gleason1, Jennifer J. Jones2,
and Jessica Rae McBean3
Although still a minority, the growing number of women on both the Bench
and at the Bar of the U.S. Supreme Court has important implications for
judicial decision-making and successful advocacy at the Court. Research in
judicial behavior generally focuses on vote direction and the presence of
female attorneys in a case. We offer a more nuanced account of how gender
impacts both attorney success and judicial decision-making by drawing on
work in social and political psychology and utilizing quantitative textual
analysis to explore the tension between masculine norms of behavior that
are valued in the legal profession and feminine norms of behavior that are
expected of women, but devalued in the legal profession. Based on the
Court’s long-standing disdain for emotional arguments, we examine how the
emotional content in 601 party briefs shapes the Court’s majority opinions.
Our results indicate that male justices evaluate counsel based on their
compliance with traditional gender norms—rewarding male counsel for
1Idaho State University, Pocatello, ID, USA
2Loyola Marymount University, Los Angeles, CA, USA
3American University, Washington, DC, USA
Corresponding Author:
Shane A. Gleason, Department of Political Science, Idaho State University, Campus Box 8073,
Pocatello, ID 83209, USA.
766466APRXXX10.1177/1532673X18766466American Politics ResearchGleason et al.
Gleason et al. 495
cool, unemotional arguments and rewarding female counsel for emotionally
compelling arguments. However, we find no evidence that gender norms
shape the opinions of female justices. Given that the justice system is
supposed to be “blind,” our results highlight the durability of gendered
expectations and raise questions about the objectivity of judicial decision-
judicial decision-making, gender, social psychology, emotion, quantitative
textual analysis
For most of the U.S. Supreme Court’s history, the Bench and Bar were closed
to women because of their supposed inability to handle the rigors of the legal
profession.1 Three women now sit on the Bench; yet at the Bar, women are
significantly outnumbered by men (Sarver et al., 2007-2008) and they are
less successful than men in advocating before the Court with conservative
justices in some issue areas (Szmer, Sarver, & Kaheny, 2010). The tension
between the feminine norms of behavior expected of women and the profes-
sional norms expected at the Court may be an important explanation for this
discrepancy. The norms of adversarial argument and conflict, so embedded in
the Court’s ethos, contradict the norms of behavior historically associated
with women, such as empathy, agreeableness, and consensus building.
Violating gender norms to conform to professional norms or vice versa car-
ries the risk of sanction (Biernat, Tocci, & Williams, 2012; Nelson, 2015
Rudman and Glick, 1999, 2001), placing female attorneys into an unenviable
double bind (Rhode, 1994; Wald, 2010).
Justice Sotomayor (2013) speaks to this tension, saying that for women to
be successful as attorneys, they need to present legal arguments “just like a
guy” (p. 180). Although doing so allows women to meet the professional
norms of the Court, it also forces them to to violate long-standing gender
norms. Research in social psychology suggest that when women (but not
men) violate traditional gender norms, they are subjected to social “backlash”
and are evaluated more negatively by others (Rudman & Glick, 2001, 1999;
Heilman, Wallen, Fuchs, & Tamkins, 2004). Indeed, as a result of her
demeanor as an attorney Sotomayor earned the title “one tough bitch” from
her colleagues (p. 261). Sexism in the legal profession, Justice Sotomayor
concedes, is “an occupational hazard” for women (p. 203). Such dilemmas
are particularly pronounced in male-dominated environments including
political and corporate leadership (Eagly & Carli, 2007; Jones, 2016), the
496 American Politics Research 47(3)
partnership ranks of large law firms (Wald, 2010), and we contend among
elite attorneys arguing before the Supreme Court.
The ways attorneys navigate gender and professional norms enable us to
study whether the justices, both male and female, evaluate counsel differently
depending on their conformity to traditional gender norms. We expect these
evaluations will be less problematic for male attorneys than for female attor-
neys because professional norms of the Court are consistent with masculine
norms of behavior, but inconsistent with feminine norms of behavior. However,
research in judicial behavior finds, under specific conditions, female judges
decide cases differently than their male peers (e.g., Boyd, 2013; Scheurer,
2014). Part of this is attributable to the sexism female jurists likely experi-
enced as they climbed through the judicial ranks themselves (Coleman, 2001;
Haire & Moyer, 2015; Kearney & Sellers, 1996; Seidenberg, 1985). Female
judges, based on past experience, are likely cognizant of this tension and per-
haps less likely to sanction female counsel for violating gender norms. This
has important consequences for calls for diversity on the bench as well as
normative concerns over the blindness of the justice system.
Drawing upon recent work which finds the structure and content of legal
arguments impacts attorney success (Black, Hall, Owens, & Ringsmuth, 2016;
Wedeking, 2010), we contend that male and female attorneys’ conformity with
gendered norms of communication impacts the evaluation of the justice writ-
ing the majority opinion. We focus specifically on the emotional content in
legal briefs because the stereotype that women are more emotionally expres-
sive than men is not only pervasive but empirically supported (Chaplin, 2015;
Fischer & LaFrance, 2015; Fischer & Manstead, 2000; Mulac, Giles, Bradac,
& Palomares, 2013; Yu, 2011). We thus analyze the emotional content in all
601 party briefs filed at the Supreme Court between the 2010 and 2013 terms
using quantitative textual analysis, (e.g., Black et al., 2016; Pennebaker,
Chung, Ireland, Gonzales, & Booth, 2007; Wedeking, 2010). In doing so, we
move beyond previous work on attorney gender and judicial decision-making,
which focuses on the presence of female attorneys and the direction of a
judge’s vote (e.g., Collins, Manning, & Carp, 2010; Szmer et al., 2010). Our
findings suggest that male justices reward attorneys, both male and female, for
conforming to traditional gender norms in briefs. In other words, male attor-
neys are rewarded for utilizing more masculine language in their briefs,
whereas female attorneys are rewarded for employing more feminine lan-
guage. However, we find no effect on female justices’ evaluations of legal
arguments for either male or female attorneys.
This research not only adds important nuance for the study of judicial
decision-making and attorney success, but it also extends psychological work
on gendered communication to appellate courts. Our findings suggest that the

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