You Think; Therefore I Am: Gender Schemas and Context in Oral Arguments at the Supreme Court, 1979–2016

• DOI: http://doi.org/10.1177/10659129211069176
• Published date: 01 March 2023
• Date: 01 March 2023
• Subject Matter: Articles

Article

Political Research Quarterly

2023, Vol. 76(1) 143–157

© The Author(s) 2022

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DOI: 10.1177/10659129211069176

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You Think; Therefore I Am: Gender

Schemas and Context in Oral Arguments

at the Supreme Court, 1979–2016

Shane A. Gleason

1

and EmiLee Smart

2

Abstract

Attorneys’ability to secure justice-votes is shaped by gender schemas, subconscious expectations which hold women

should use more emotion than men. This poses few problems for male attorne ys since men and attorneys are both

expected to avoid emotion. But, women are placed in a double-bind with comp eting professional and personal ex-

pectations. We argue gender schemas are not static rather they change with the context of the Court. Introducing a new

dataset inclusive of all oral arguments from 1979 to 2016, we utilize quantitative textual analysis and f‌ind gender schemas

predict securing justice-votes as the Bar becomes more diverse and justices become more conservative. Our results

raise normative concerns about female attorneys’ability to substantively contribute to the Court’s case law.

Keywords

gender schemas, oral arguments, attorneys, U.S. Supreme Court, diversity

As a f‌irst-year law student in the 1950s, Ruth Bader

Ginsburg was asked by Harvard Law School Dean Erwin

Griswold why she was taking a seat that would otherwise

go to a man (Ginsburg 2016). Twenty-f‌ive years later

Chief Justice Burger openly voiced opposition to female

law clerks and justices, arguing they were unf‌it for the

rigors of the Court (Thomas 2019;Woodward and

Armstrong 1979). These blatantly sexist comments

were the product of prevailing gender schemas holding the

law was a male domain (e.g., Haire and Moyer 2015;

Norgren 2018;Schneider and Bos 2019). Over the past

several decades, the role of women, in society broadly and

the legal profession specif‌ically, has changed remarkably

(Faludi 1991;Fileborn and Loney-Howes 2019;Haire and

Moyer 2015;Rhode 2002); though, implicit sexism re-

mains (Noonan and Corcoran 2004). While women now

constitute approximately a quarter of all oral advocates at

the Court, they are often evaluated by how well they

conform with gender schemas (Gleason 2020;Szmer et al.

2010;Patton and Smith 2017), implicit expectations about

how women and men should act in a host of contexts

(Bem 1979;Hudak 1993;Patton and Smith 2020). This

often occurs through language (Gleason 2020).

Collectively, existing studies f‌ind female attorneys

more effectively secure justice-votes when conforming

with gender schemas. But, existing work is restricted to

brief time periods where the Court’s context is relatively

static. Since gender schemas dynamically change with the

broader social and political context (e.g., Sanbonmatsu

2002,2008), the relative importance of gender schemas in

attorneys securing justice-votes should likewise change

over time. Thus, we must consider the Court’s changing

context to fully understand how gender schemas shape

attorneys obtaining justice-votes.

Since the legal profession’s culture is overwhelmingly

male (Gorman 2005;Rhode 1994,2002), male gendered

expectations align with attorneys’professional expecta-

tions (Gleason et al. 2019). This is due to an often overtly

sexist history (Norgren 2018) which has implications to

the present day (Kaheny et al. 2015;Sarver et al. 2008;

Epstein et al. 1995;Noonan and Corcoran 2004). Con-

sequently, despite an increasingly gender diverse Bar, the

1

Department of Social Sciences, College of Liberal Arts, Texas A&M

University - Corpus Christi, TX, USA

2

Department of Political Science, College of Arts & Sciences, University

of Kentucky, Lexington, KY, USA

Corresponding Author:

Shane A. Gleason, Department of Social Sciences, College of Liberal

Arts, Texas A&M University- Corpus Christi, 6300 Ocean Drive, Unit

5826, Corpus Christi, TX 78412, USA.

Email: shane.gleason@tamucc.edu