Trailblazers and Those That Followed: Personal Experiences, Gender, and Judicial Empathy

• DOI: http://doi.org/10.1111/lasr.12150
• Published date: 01 September 2015
• Date: 01 September 2015

Trailblazers and Those That Followed: Personal

Experiences, Gender, and Judicial Empathy

Laura P. Moyer Susan B. Haire

This article investigates one causal mechanism that may explain why female

judges on the federal appellate courts are more likely than men to side with

plaintiffs in sex discrimination cases. To test whether personal experiences

with inequality are related to empathetic responses to the claims of female

plaintiffs, we focus on the first wave of female judges, who attended law school

during a time of severe gender inequality. We find that female judges are

more likely than their male colleagues to support plaintiffs in sex discrimina-

tion cases, but that this difference is seen only in judges who graduated law

school between 1954 and 1975 and disappears when more recent law school

cohorts of men and women judges are compared. These results suggest that

the effect of gender as a trait is tied to the role of formative experiences with

discrimination.

You know, the young women today can’t possibly ...under-

stand the pressures of being first ... Nothing was good

enough, and it took me an awful lot of years to realize how

good many of the women really were in relationship to the

men’s talents. I mean, when I think of it, men that were hun-

dreds of places below us in class were getting great jobs and

there were no jobs for us.

-Judge Ilana Rovner

1

The authors would like to thank Barry Edwards, Susan Johnson and the other panelists

at the 2014 meeting of the Midwest Political Science Association, and finally the anony-

mous reviewers and editors for their helpful comments and criticisms on early versions of

this paper. Any errors that remain are the authors’ own. Please direct all correspondence

to Laura Moyer, University of Louisville, Political Science, Louisville, KY; e-mail: laura.

moyer@louisville.edu.

1

Women Trailblazers in the Law Project Oral Histories, Box 8, Manuscript Division,

Library of Congress, Washington, DC. Transcriptof oral history of Ilana Diamond Rovner,

Karen A. Clanton interviewer.Dates of interviews: August 20, 28, September 28, November

8, 2007, pp. 20–21.

Law & Society Review, Volume 49, Number 3 (2015)

V

C2015 Law and Society Association. All rights reserved.

665

Every time I wanted to do something, I had to invent a way

to do it because there was no path for me.

-Judge Shirley Hufstedler

2

When U.S. Courts of Appeals’ judges Ilana Rovner and Shir-

ley Hufstedler graduated from law school in 1966 and 1949,

respectively, nationwide, women comprised less than 5 percent of

all law students (www.americanbar.org). In contrast, in 2011,

women made up 46 percent of all students enrolled in law

school. These judges’ comments about the obstacles they faced as

trailblazers when entering the legal profession are quite similar to

the recollections of former U.S. Supreme Court justices Sandra

Day O’Connor and Ruth Bader Ginsburg about overtly discrimi-

natory treatment in law school and the legal profession in the

1950s and 1960s (Ginsburg and O’Connor 2010). Oral histories

of the first women appointed to the lower federal judiciary

repeatedly touch upon the themes of blatant discrimination

against women by law professors, fellow law students, and

employers. When this trailblazer generation of female judges

joined formerly all-male courts, many of them also came face-to-

face with exclusionary traditions and practices in their new cir-

cuits (Haire and Moyer 2015). For instance, when Florence Allen

joined the Sixth Circuit as the first woman, she dined alone at

lunchtime because her male colleagues frequently lunched at pri-

vate clubs that did not admit women.

3

Given how widespread dis-

criminatory treatment was for early female appointees, did their

personal experiences with discrimination affect how these judges

confronted the issue of sex discrimination in their cases?

Recent research on the U.S. Courts of Appeals has established

that female judges are more likely than men to side with plaintiffs

in sex discrimination cases (Boyd et al. 2010; Peresie 2005) and

other types of employment discrimination cases (Moyer and

Tankersley 2012; Songer et al. 1994).

4

Scholars have speculated

that women’s personal experiences with sex discrimination (and

men’s lack of such experiences) could be driving this effect

(Martin et al. 2002). For instance, in a survey of Carter’s female

2

Diversifying the Judiciary, An Oral History of WomenFederal Judges, Federal Judi-

cial Center. Transcript of interview with Shirley Hufstedler, Sarah Wilson interviewer. Date

of interview: March 10, 1995, p. 11.

3

Women Trailblazers in the Law Project Oral Histories, Box 9, Manuscript Division,

Library of Congress, Washington, DC, Transcript of oral history of Mary Murphy

Schroeder, Patricia Lee Refo interviewer. Dates of interviews: August 30, September 9,

October 13, 2006; January 3, 2007, p. 82.

4

Similar findings in sex discrimination cases have been shown at the state supreme

court level (Gryski, Main, and Dixon 1986).

666 Trailblazersand Those That Followed