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

• DOI: 10.1177/1532673X18766466
• Date: 01 May 2019
• Published date: 01 May 2019
• Subject Matter: Articles

https://doi.org/10.1177/1532673X18766466

American Politics Research

2019, Vol. 47(3) 494 –529

© The Author(s) 2018

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DOI: 10.1177/1532673X18766466

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Article

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

Abstract

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.

Email: gleashan@isu.edu

766466APRXXX10.1177/1532673X18766466American Politics ResearchGleason et al.

research-article2018

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-

making.

Keywords

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