Female Attorneys Before the Supreme Court

I just read a very interesting paper by a colleague and wanted to bring it to the attention of the readership because of its very important findings.  In "Have We Come a Long Way Baby:  Female Attorneys before the United States Supreme Court," John Szmer, (UNC-Charlotte), Tammy Sarver (Benedictine) and Erin Kaheny (UW-Milwaukee) seek to determine whether attorney gender matters to U.S. Supreme Court justices in their decision making.  Here's their abstract:

While the impact of an attorney's sex has been examined with respect to trial court processes (e.g., jury decision making), no one has previously studied its effects on appellate court decision making. In this article, we argue that the application of gender schemas by some justices results in a devaluing of the arguments made by women litigators. Our findings suggest that women orally arguing attorneys are less likely to receive a favorable vote by a justice than are the male counsel they oppose and that conservative justices are more likely than their liberal counterparts to vote against litigants represented by female counsel at oral argument. This suggests that the ideology of elites influences whether they apply gender schemas in a negative fashion. We also find that justices are more likely to side with female lawyers in women's issues cases, indicating that the justices' perceptions of female lawyer expertise are enhanced in those cases. These findings persist even after controlling for multiple factors, including attorney expertise, the sex of the justice, amicus participation, party capability, and judicial ideology.

An extremely significant contribution to both judicial decision making AND questions of the role of gender in American politics.  I commend it to you.

*NOTE:  This link has been updated to point to the published version of the article rather than the draft, posted originally.  SCB 02.17.15

 

 

Comments

[Car Accident Lawyers]

I totally agree that there is a gender bias in most every workplace in America. I think it is going to take a few decades before men and women are truly seen as equals. I mean, this article is not really news to me, but it is a reminder that we still have a long ways to go.

[attorneys]

This is a wonderful article. The things given are unanimous and needs to be appreciated by
everyone. Attorney means compensation for a person’s injury.It can be physical or psychological or
any wrong doing of another person or company. A Personal Injury Lawyer can help an injured
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[josie]

Hi
Im doing a paper on the role of female federal judges. I need some resources and some more information. COuld you please send me some information.

Thanks

Josie

[Sarah]

Sara: I have a logistical question for you regarding this study, knowing of course that you're not the author. Do you know how I might find out if there are any women scheduled to argue before the Supreme Court this coming Fall term? I'm a law student and would like to organize a trip for our student women's group to attend.

[sial]

very cool...........

[John Szmer]

A few additional points. I recently checked the data: women attorneys participate fairly equally as both petitioner and respondent (less than a percent difference). So I don't think the results are an artifact of the tendency to reverse 2/3 of the cases.

Also, women attorneys, contrary to intuition, are just as likely to represent (both on brief and in oral arguments) parties that prefer conservative outcomes as they are to represent parties that prefer liberal outcomes. Just in case, we did include a variable that controlled for the ideological direction of the litigant's poisition.

Finally, we recently presented a paper testing a similar model of Supreme Court of Canada decision making ("LAWYER AND JUSTICE GENDER: EXAMINING THE SUPREME COURT OF CANADA" by Kaheny, Sarver, and Szmer). While we could not examine the impact of the gender of the orally arguing lawyers(the reporter and Court records do not distinguish between roles), we do find that parties represented by women lawyers are more likely to WIN at the SCC. Of course, given the gender diversity on the SCC (4 female justices, including the chief justice) compared to the lack of diversity in the U.S. court, this is not too surprising.

[Alex]

Do they control for the ideology of the lawyers' client's position? Maybe more female litigators represent "liberal" causes, which explains the findings completely. Maybe I should just read it and find out... but that's my first OVB thought.

[Sara Benesh]

That's technically true, but they do control for some other indicators of which side might be "best" by measuring amici support, US as amici, ideological comparability, and party capability. They also include controls for "how good the litigation team is" (so, how good the arguments might be) through experience and clerkships. Perhaps they could consider controlling for the propoensity to reversal in a revision -- that could prove useful. Perhaps they'll react to your comment as well.

[Michael Heise]

Sara: Although I've only read--and not yet carefully studied--the Szmer et al. paper, what immediately struck me was the apparent absence of any effort to control for case merits. To be sure, this is a difficult task. (Far, far easier to manage, obviously, with controlled experimental designs.) Also, if one wanted to "predict" S.Ct. case outcomes with a *single* variable, it turns out that the variable "reverse" will, in general, explain a lot of the variation on the left-hand side of the equation. Thus, if it happens that female attorneys are more likely to represent respondents (and, candidly, I am not aware of any reason rooted in either theory or common sense to expect, ex ante, that they would) then the female attorneys would approach their appeal at something of a disadvantage that has nothing to do with gender. Anyway, an intriguing paper and an interesting line of inquiry, but I'm not yet quite sure what to make of their models.