What do we know about the influence of gender on judging?

by Angela N. Johnson

Rhode weighs various conflicting evidence on whether gender influences judging and sums up the available literature in her article, In a “Different” Voice.  She finds after reviewing the current literature on the topic, that “gender matters in certain kinds of cases, in particular discrimination cases, which is one of the reasons why diversity should matter for selecting judges” (Rhode, In a “Different” Voice: What does the research about how gender influences judging actually say? 2009).

Rhode credits Christina Boyd, Lee Epstein and Andrew Martin as having the most comprehensive analysis on this topic in their paper, Untangling the Causal Effects of Sex on Judging, which won the 2008 Pi Sigma Alpha award for the best paper presented at the annual meeting of the Midwest Political Science Association.  My summary on that article is forthcoming.  According to Rhode, the article examines all previous studies on gender and judging and finds that approximately one-third of the studies find differences in the votes of male and female judges or differences in the votes of a panel of judges when one member is a woman.   Another third find no gender differences and the remaining third report gender differences in votes “either of individual judges or of judges with a woman on the panel – one or the other but not both” Id. One possible explanation for the variations of results is that there is a low sample size (women comprise just 31% of state final appellate jurisdiction courts; 31% of intermediate appellate jurisdiction courts; 24% of state general jurisdiction courts; and 30% of limited and special jurisdiction courts (National Association of Women Judges, 2010 Representation of United States State Court Women Judges)).  Rhode also acknowledges the difficulty in comparing studies of this nature because research differs in terms of time peiods, cases, courts, and controlling variables.

Ideology can also pose a challenge because it is hard to control for (was it the judges’ ideology or gender that impacted the ruling?).   Rhode reports that women on the federal bench lean to the political left while men are more evenly distributed.  The Boyd, Epstein, and Martin article found that the “probability of a judge ruling in favor of a discriminated plaintiff decreases by about 10 percent when the judge is a man.  When a woman is on the panel, the likelihood that a male colleague will rule in favor of the plaintiff increases 12 percent to 16 percent” Id. This study is consistent with previous studies of gender discrimination cases, including Jennifer Peresie’s Female Judges Matter which found that the presence of a woman on an appellate panel more than doubled the likelihood that a male judge would rule for the plaintiff in a sex harassment case, and tripled that likelihood for a sex descrimination claim.  But is it gender or is it world view?  Rhode reflects on Justice Thurgood Marshall, who having experienced racial injustice firsthand, reflected on those experiences in his contributions to the U.S. Supreme Court.

Source Citation: Rhode, Deborah. “In a “Different” Voice: What does the research about how gender influences judging actually say?” Slate http://www.slate.com/id/2220220/, June 10, 2009.

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