Attorney Gender & Judicial Decision Making

I am currently working on a series of projects with John Szmer (University of North Carolina, Charlotte) and Tammy Sarver (Benedictine University) concerning the influence of attorney gender on judicial decision making. In a paper recently posted on the ELS Blog, "HAVE WE COME A LONG WAY, BABY: FEMALE ATTORNEYS BEFORE THE UNITED STATES SUPREME COURT," we tested a “gender schema” hypothesis by examining the influence of the gender of the orally arguing attorney on the likelihood of the petitioner receiving a favorable vote. We also tested a “different voice” hypothesis via the gender composition of the litigation team. When we examine the gender of the orally arguing attorney and the gender composition of the litigation team in separate models, we find a negative and statistically significant relationship between the attorney gender variables and the vote. However, when included in the context of the same model, the negative relationship between the orally arguing attorney’s gender and the likelihood of receiving a favorable vote is no longer statistically significant. The litigation team gender variable, however, retains its negative relationship and is statistically significant.  This led us to reject the idea that the application of negative gender schema was at work, since this should most clearly manifest itself with respect to the orally arguing attorney. Instead, we conclude that the results tend to support the “different voice” theory.

In working on the project, we agreed that it would be interesting to test whether the relationship between attorney gender and the vote was conditional upon the justice’s gender and, indeed, we do report these results (in the text). With only two female justices on the Court, however, our ability to generalize is limited. Most recently, we have analyzed a similar model in Supreme Court of Canada (SCC) decisions. In the time period of our Canadian study, four women sat as justices on the SCC. The current Chief Justice, moreover, is a woman. In our preliminary analysis, we found that petitioners who employ a larger number of women on their litigation teams relative to the number employed by respondents are more likely to receive a favorable judicial vote. However, our results have not uncovered a conditional relationship between justice gender and attorney gender. Moreover, although we made strong attempts at building comparable models, we were not able to discern who orally argued the case before the SCC. Consequently, our results in the Canadian context were limited to an analysis of the gender composition of the litigation team.