Archive for ‘Decision Making’

April 15, 2011

Difference in Judicial Discourse; Value in Exploring Role of Law Clerks

by Angela N. Johnson

Maveety’s article reviews the Sonia Sotomayor confirmation hearings and the infamous “wise Latina” exchanges that prompted concern over the possibility that judges render decisions based on their gender or world view (Maveety 2010, 453).  Moreover, this article examines differing sentiments on whether women judges view cases differently.  For example, Justice O’Connor has often said “a wise old man and wise old woman will reach the same conclusion in deciding cases” Id. at 453.  The problem, as noted by Maveety, is that there is no universal definition of “wise” and that by nature, a judges’ decision-making will necessarily be influenced by past experiences.  When Justice Sotomayor later recounted her “wise Latina” statement, she explained that “by ignoring our differences as women or men of color we do a disservice both to the law and society” Id. at 454. Justice O’Connor also changed her previous “same conclusion” statement by admitting it is “helpful to the Court to have nine members of different backgrounds and experiences and, yes, even gender.  We bring different life experiences to the task, and that’s a good thing” Id. at 455-456.  Moreover, upon her retirement, Justice O’Connor expressed disappointed that her replacement was not a female, which left Justice Ginsburg the lone woman on the bench.  While Maveety does not address the Justice O’Connor’s apparent change of heart, I have to wonder about the context of these statements.  Perhaps the previous statement made by Justice O’Connor was made during the years when it was best to defend women’s inclusion on the bench by refuting any differences in the token-number appointments.  If this is so, then it would follow that in more recent years Justice O’Connor can now embrace the benefits that women bring to the bench without facing ridicule or setting-back women’s progress.

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April 15, 2011

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).

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April 4, 2011

Judging Alone: Reflections on the Importance of Women on the Court

by Angela N. Johnson

Author Karen O’Connor acknowledges that there is no persuasive evidence[1] for a “womans judicial voice,” but that the representation of diverse women judges impacts public policy favorable to women and is important for socialization and collegiality (O’Connor 2010, 441). One such area that appears to be impacted by women’s presence on the bench is that of gender discrimination cases.  O’Connor reports that scholars believe gender discrimination cases are an exception because women have some shared life experiences that may inform their legal reasoning. This article also considers the experiences of Justice Ginsburg after Justice O’Connor’s departure. In writing this article, O’Connor considered gender discrimination cases before the Supreme Court from 1981 to 2008 to suggest that gender discrimination cases “remain a powerful rallying point for women Judges” Id. at 442. Taking for example, Justice Sandra Day O’Connor’s impact on gender discrimination cases, beginning with her majority opinion in Mississippi University for Women v. Hogan (1982), which ruled certain types of single-sex admissions policies violated the Fourteenth Amendment’s equal protection clause – a “decision Justice O’Connor’s predeceasor, Justic Potter Stewart, would probably not have cast” Id. at 443. Even more compelling, is Justice O’Connor’s impact on her colleagues.  According to the author, in examining gender discrimination cases, after Justice O’Connor joined the Court, “Justice William H. Rehnquist increased his support for gender discrimination claimants from 25% to 50%.  Similarly noteworthy were O’Connor’s apparent effects on Chief Justice Warren E. Burger (32.1 to 50%), Justice John Paul Stevents (57.1% to 83.3%), and Justice Byron White (69.8% to 91.7%). 

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