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

Published date01 September 2015
Date01 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
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
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.
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)
C2015 Law and Society Association. All rights reserved.
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
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 ( 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.
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).
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
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.
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.
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

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