Trading Liberties for Security: Groupthink, Gender, and 9/11 Effects on U.S. Appellate Decision-Making

Published date01 May 2020
Date01 May 2020
Subject MatterArticles
/tmp/tmp-178joT8TO4j30W/input 881627APRXXX10.1177/1532673X19881627American Politics ResearchReid et al.
American Politics Research
2020, Vol. 48(3) 402 –413
Trading Liberties for Security:
© The Author(s) 2019
Article reuse guidelines:
Groupthink, Gender, and 9/11 Effects
DOI: 10.1177/1532673X19881627
on U.S. Appellate Decision-Making
Rebecca Reid1, Susanne Schorpp2 , and Susan W. Johnson3
Does groupthink affect court deference to the government in times of heightened security concerns? We argue that male
judges serving in homogeneous panels in federal appellate courts modified their behavior post-9/11, but that the presence
of a female on the panel mitigated these effects. Using data on the U.S. Court of Appeals from 1978 to 2008 in search-
and-seizure cases, we argue that women can safeguard against groupthink effects that otherwise trend toward a more
deferential, less rights-oriented approach in times of heightened security. Our findings suggest women mitigate their male
colleagues’ shift toward more deferential decisions by affecting panel outcomes that are more consistent with peacetime
decisions. These results suggest the important role women exert in collegial panels beyond direct voting patterns. In times
of heightened security concerns, panel diversity can avoid groupthink that might stand in the judiciary’s way of providing an
effective check on executive and legislative power.
U.S. Courts of Appeals, groupthink, gender, judicial decision-making
Scant scholarship has examined the propensity of judicial
(Smith, Tindale, & Steiner, 1998; Sunstein & Hastie, 2008;
deliberations to exhibit groupthink and conformity pressures
Tindale, Smith, Thomas, Filkins, & Sheffey, 1996). In fact,
(though see Breger, 2010; Kastellec, 2013) despite acknowl-
empirical research has found that judges participating in
edging decision-making in appellate courts as a collective
group decision-making are subject to conformity pressures
exercise rather than isolated individual events (Murphy,
because judges care about how their peers evaluate them and
1966; Schubert, 1964; Ulmer, 1971).1 Yet, appellate judges
prefer higher status and reputation (Sunstein, 2003; Sunstein,
may be predisposed to experience conformity pressures and
Schkade, Ellman, & Sawicki, 2006).
groupthink as they have a common frame of reference and
Appellate courts, thus, engender an environment facilita-
legal training (with all of its associated norms), share the
tive to conformity and groupthink pressures. However, scant
same (role) identity, behave interdependently to render deci-
judicial scholarship examines these effects, and they are fur-
sions collectively, develop personal affects, share a common
ther limited in that they (a) omit sociopolitical contexts,
goal, regularly interact, and often come from similar socio-
implicitly assuming group deliberation processes remain
economic classes and regions (Hinkle & Nelson, 2018).
constant across environments, and (b) evaluate group diver-
Furthermore, unanimity is often a judicial goal itself as it
sity in terms of ideological variation only. Yet, substantial
enhances the legitimacy of courts by reinforcing the percep-
research illustrates that group deliberation processes are
tion that decisions are based on objective legal reasoning and
contingent upon their environment, and group diversity
enhances the predictability of future decisions (Bowie,
beyond partisanship matters. In particular, conformity pres-
Songer, & Szmer, 2014). Indeed, pressures for conformity
sures during times of war and national security threats can
(i.e., uniformity) increase as group members become more
dependent upon each other to achieve the group goal or deci-
sion, especially as its importance increases (Festinger, 1968),
University of Texas at El Paso, El Paso, TX, USA
2Georgia State University, Atlanta, GA, USA
and these group dynamics sometimes push members to take
3University of North Carolina at Greensboro, Greensboro, NC, USA
more extreme stances than they would otherwise (Forsyth,
1999; Stangor, 2004). Hence, group decisions can actually
Corresponding Author:
Susanne Schorpp, Georgia State University, 38 Peachtree Center Ave.,
amplify individual errors as well as generate overconfidence
Langdale Hall 1011, Atlanta, GA 30303, USA.
in the decision and escalate commitment to the decision

Reid et al.
exacerbate group error and increase the likelihood of group-
effects.3 Literature suggests that female judges are more
think (Janis, 1972, 1982, 1989; M. E. Turner, Pratkanis,
pro-plaintiff in cases that directly affect women, such as
Probasco, & Leve, 1992), while group diversification can
cases pertaining to women’s issues and sexual discrimina-
enhance deliberation processes and outcomes (Ely & tion (Boyd, Epstein, & Martin, 2010; Kay & Gorman, 2008;
Thomas, 2001; Swann, Kwan, Polzer, & Milton, 2003) as
Kuersten & Manning, 2000; R. C. Turner & Breslin, 2003),
well as lower the probability of groupthink (Cox, 1993, p.
while observed gender differences become less consistent
in other issue areas, such as criminal cases (Songer, Davis,
As such, we examine the joint effects of national security
& Haire, 1994). Still, none of this research has accounted
threats and gender diversification on judicial deliberation.
for how political context, such as the War on Terror, affects
Specifically, we examine how the War on Terror affected men
such gendered decision-making. We, thus, contribute to
and women judges’ decision-making on U.S. appellate courts
both literatures by addressing how gender influences the
in search-and-seizure cases. Judicial behavior during the War
degree to which judges are willing to trade civil liberties for
on Terror offers an opportunity to examine how security con-
national security priorities and how gender diversity on
cerns shape decisions, and incorporating gender effects helps
judge panels can mitigate the effects of groupthink.
us understand how judge attributes mediate these concerns.
Analyzing differences in judicial decision-making on Court
Gender During Times of National
of Appeals data from 1978 to 2008 in search-and-seizure
Security Threats
cases, we argue that women can safeguard against groupthink
effects that are otherwise more likely to trend toward a more
Rather than focus on the effects of “femaleness” on judicial
deferential, less rights-oriented approach in times of national
behavior,4 we argue that the effects of heightened security
security threats. We find that male judges serving in all-male
concerns most directly impact male judges, especially where
panels are most affected by national security threats and
decision-making occurs in homogeneous groups. While
respond by shifting their votes to become more deferential to
judges are elite actors, we argue the effects of national secu-
executive and legislative power. Women, however, appear to
rity threat nevertheless subtly play upon expectations and
play a mitigating role on their male counterparts in generating
performances of masculinity whereby threat generates role
case outcomes that are more consistent with peacetime checks
identity and social identity incentives for men to perform
on executive and legislative power.
more “masculine” traits to establish and validate male group
membership. These incentives especially impact male behav-
War, Gender, and Judging
ior in group decision-making environments. We, thus, com-
bine role identity theory (Grossman, 1968) and social identity
Trends of increased judicial deference during times of war
theory to identify the gendered effects of national security
(relative to times of peace) are thought to occur because
threats on judicial decision-making and illustrate how male
judges, like the general public, prefer a more security-
judges drive the observed shift to increased government def-
oriented balance over civil liberties in these periods of secu-
erence in judicial decision-making.
rity threat (Clark, 2006; Collins, Norton, Manning, & Carp,
2008; Epstein, Ho, King, & Segal, 2005).2 This change, thus,
Male Panel Behavior in Times of Threat
reflects sincere shifts in individuals’ preferences where judges
and regular citizens become willing to trade some civil liber-
Gender is a systematic social construct (Peterson, 1992),
ties in return for increased security (Randazzo, 2011). Indeed,
whereby each gender is attributed certain stereotypical
these studies echo the sentiment of some judges themselves.
behaviors that are socially determined (Burke, 1991; Simon,
For instance, Chief Justice William Rehnquist (1998) asserted
1992). For example, masculinity has been traditionally asso-
that “it is neither desirable nor is it remotely likely that civil
ciated with agency, reason, competitiveness, autonomy,
liberty will occupy as favored a position in wartime as it does
assertiveness, aggression, risk-taking, dominance, power,
in peacetime” (pp. 224-225). However, these studies assume
and strength or toughness (Fischer, Tokar, Good, & Snell,
that the effects of war on decision-making will generally be
1998; Levant, Rankin, Williams, Hasan, & Smalley, 2010;
consistent across judges (though see Collins et al., 2008).
Levant et al., 2012; McCreary, Saucier,...

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