Gender and Judicial Decision Making
Do Male Judges Decide Cases Differently than Female Judges?
Introduction
It is vital to study the impact that female officeholders pose on public policy. Researcher and legal scholars have held continual debates on the impact that women have on the judiciary as well as whether there judges’ gender influence the nature of court decisions made. Many hold the view that women should hold public offices in a proportion that roughly equates to their population for the simple reason of fair play. On the other hand, others believe that appointing women to public offices may lead to enactment of specific policy changes. Owed to the fact that the equal treatment principle is integral to the justice concept, there are profound implications posed by having knowledge on whether women judges make court decisions differently from their male counterparts. There are a number of literature sources that can be used to support this view. For instance, some research studies have indicated that there is a higher likelihood for women than men to be interested in health, welfare, and crime issues, in addition to women-oriented issues like child care and abortion. On the contrary, men are likely to be interested in issues related to defense, war, and taxes. Additionally, feminist scholars have often claimed that women have played a fundamental role in bringing a difference perspective to law. This is mainly owed to the fact that they have a greater motivation to seek variable outcomes from legal process in comparison to their male counterparts. However, the question on whether there is a difference in court decisions reached by male and female judges is still vague. A literature review investigating whether male judges do judge differently than female judges will be presented below.
Literature Review
Reports from statewide task force concerning gender bias in the legal profession indicate different experiences that have been faced by women in the profession. The historical exclusion of women in the legal profession is the clearest illustration (Coontz, 2000). The representation of women was never more than three percent until the passage of Title VII. Today, 28 % of legal professionals are women. Despite the fact that every state today has women in courts, only 7.2 percent are law-trained full-time judges. Different states have different representation of women in judicial profession. For instance,
Elvin (2010), advocates for increased representation of women in the judicial system. When facts and law are approached differently by women and law, impartiality is achieved. Impartiality is one of the most important prerequisites for an adjudication to be considered legitimate. Empirical studies of gender effect are low, owed to the low numbers of women judges in international courts. According to Gruhl, Spohn & Welch (2001), there is a tendency for women judges to give heavier sentences for defendants accused of assaulting women. Male judges on the other hand have a tendency of doing the same for male victims. Additionally, several women international court judges have claimed that their life experiences pose a major difference in some of the cases. All humans are said to be products of their experiences. The only distinction with judges is that they supposedly undergo training that enables them to differentiate and divorce themselves from personal experiences, opinions, moral standards and biases so that they can impartially and fairly interpret the law (Freiburger, 2010).
According to Gruhl, et al. (2001), it is extremely difficult to conclude whether men judges make decisions that are different from those made by female judges. There is a possibility that the powerful influences of socialization to the judicial role and the legal profession may contribute to contrasts in judges’ pre-office holding attitudes. There is also a possibility that influences of the courtroom “workgroups” where judges must interact with defense attorneys and prosecutors might mitigate gender contrasts. These differences in attitude might consequently affect the decision-making behavior of judges, particularly in issues linked to sex roles (Kimberly, 2004).
Most judicial behavior studies focusing on appellate judges’ behavior do not shed much light on the probable contrasts between female and male trial judges. Only a few political scientists have conducted studies investigating the relationship that exists between trial judges’ behavior and their individual traits. According to (Boyd, Epstein & Martin, 2010) women’s presence in the federal appellate judiciary has an insignificant impact on the judicial outcomes. Statistically significant and consistent individual judge as well as panel effects were however, observed in cases related to sex discrimination. Distinct approaches are brought by females and males to such sex-related cases. When a female judge is included in the panel, it would influence in favor of the plaintiff, a way they would otherwise not take on their own. Boyd, et al. (2010) further adds that diversity in the bench could affect the judicial outcomes. Diversity means that the panel is represented by diverse genders. Both male and female judges have been represented in the panel. The range of information and ideas presented is extremely wide when there is great diversity of judges’ participation. Greater participation diversity would also signify an increase rate of deliberation (Boyd, et al. 2010).
However, Madhavi, (2008) linked the backgrounds characteristics of judges to their court decisions. In this case, an independent variable used is the judges’ race. One of the key findings of the study was that the judges’ race was one of the statistically significant variables in drawing an explanation of the variance seen in court decisions. Minor differences in decisions were observed because through learning and socialization, judges know how to isolate and eliminate racial beliefs and values when making judicial decisions. Owed to the minor differences in the decisions, it was concluded that a very minor influence was exerted by judges’ race (Madhavi, 2008).
Peresie, (2005) conducted a study investigating the role that gender plays in judicial decision-making. As an example to illustrate the relationship cases involving Title VII sexual harassment and discrimination were used. With respect to past empirical findings, some scholars hold that as a result of an increasing number of female judges, the courts will be more receptive to claimants’ arguments in cases related to gender. Some go to the extent of anticipating that female judges are likely to take advantage of decision-making opportunities to free other women. However, there is an uncertain validity of the arguments on gender affecting cases outcomes, owed to the fact that inconsistent findings have been yielded by literature (Winter, 2004)
Gender has both a direct and indirect effect on making judicial decisions. With respect to direct effect of gender, conflicting results have been produced by previous empirical studies investigating whether there is a difference in decisions made by female and male judges. A few studies on state supreme courts have indicated that there is a higher likelihood for female judges than their male counterparts to show support for plaintiffs in cases revolving around sex discrimination. However, evidence has not been found with respect to federal district courts (Peresie, 2005).
According to Meernik & Lynn, (2005), there was a less likelihood for female
By holding the assumption differences in gender do exist, several possible explanations can account for the inconsistent and weak findings of past research studies. Among the key explanations is the fact that previous studies considered a substantially small female judges’ pool, consequently leading to sample sizes not large enough to note or register the variations (Kimberly, 2004). Another possible explanation is that in past, female judges were new to courts. Therefore, there might have been a selection bias pushing female judges to be more like their male counterparts with respect to their substantive views. Additionally, female judges may have been encouraged by the pressure of matching their perspective to that of their male counterparts irrespective of their individual differences (Greene & Heilbrun, 2010). It is also essential to note there were inadequate controls for factors other than gender present in several past studies. This in turn might have influenced the process of making decision, including background variables like experience or past careers as well as ideology. It might be possible to eliminate gender differences in voting behavior if the decisions of male judges are affected by the presence of a female judge (Freiburger, 2010).
Inconsistent results have also been produced by past research studies on the indirect effect that the gender of judges has on the outcomes of federal appellate cases. Farhang & Wawro (2004) conducted a study that examined employment discrimination cases between 1981 and 1996 in federal courts of appeal. The study found that no statistically significant effect was caused by the presence of a female judge on a panel. This study exclusively focuses on non-unanimous decisions. By definition, there is a disagreement involved in non-unanimous cases. This means that there is a less likelihood of finding male judges in agreement with their female counterparts in such cases. Additionally, rare cases are non-unanimous, and the decisions made by judges in such cases may not be an indication of the general voting pattern (Dolan, 2002).
There are a number of explanations that can be developed for the gender effect observed and how a female judge’s presence on federal appellate panel may result to a high possibility of a male judge and the whole panel to show support to the plaintiff in cases related to gender. Some of the explanations are based on deference, deliberation, moderation, and logrolling. Among the key explanations is the predication that the gender effects arise from the common give-and take of judges with variable differences, all working toward influencing the outcomes of the case. It can also be predicted that a female judge’s presence alters a deliberation’s character, which causes a grater weight to be carried by the preferences of the female judge (Coontz, 2000).
In response to the findings presented by Presie (2005), Cross (2007) argues that the study does not take into account the bulk of cases revolving around sex discrimination and sexual harassment. Instead, the study only seeks to give explanation to the instances where a pro-plaintiff outcome is associated with the presence of a female judge. Also, a universal form of decision-making is not presumed in the study. Male judges may be influenced by the presence of female judges prior to or during oral argument, in information conversations regarding the case, in conference following the argument, or in form of writing as judges exchange their opinions or drafts. There is a possibility for specific form that the interactions take to be different across circuits and panels. For example, some circuits would general eschew conferences and oral argument about outcomes. All circuits depend on members of staff including staff attorneys and judicial clerks, for case processing and writing of the initial drafts of a few opinions (Cross, 2007).
A study conducted by researchers from Washington University, Northwestern University, and State University of New York indicated that the difference in the way male and female judges decided cases was insignificant, with the exception of sex discrimination. In cases involving sex discrimination, there was a high likelihood for women to rule in the victim’s favor. The first woman to serve on the Supreme Court, Sandra Day O’Conor had often been quoted stating that the same conclusion will be reached by a wise male judge and a wise female judge (Lewis, 2009). This is to imply that the gender of the deciding judge would have an insignificant influence on the final court decision or judgment made.
In opposition to Sandra Day O’Conor’s view, Justice Ruth Bader Ginsburg, the only woman in court in a recent case that involved a 13-year old girl, Savana Redding who had been strip-searched by authorities at a school following suspicions that she hid some over-the counter ibuprofen pills (Lewis, 2009). Justice Ginsberg claimed that her eight male colleagues has never been a 13-year old girl. Many of those colleagues orally suggested that there was nothing troubling about the searching. Justice Ginsberg further added that at that age, a girl is very sensitive, and it seemed that none of her male colleagues understood that (Lewis, 2009).
In the summer of 2005, the United States Supreme Court Justice, Sandra Day O’Conor announced her retirement. This gave the then
Colins, at al. (2010) examined the impact of judges’ gender on court decision using critical mass theory as the basis. There are several interpretations and applications of the critical mass theory. However, the claim held by the theory is group interactions will alter and substantive behavior differences of the groups involve start to emerge once a specific level of minority representation has been reach. This minority representation level is referred to as critical mass. This implies that once a critical mass has been reached by minority groups, members of such groups gain more assertiveness in terms of shared perspectives and interests. Consequently, more distinctive behavior is exhibited.
The critical mass theory also holds that the size of the groups involved may affect the nature of group interactions. There is a less likelihood for minority groups to exhibit behavior that is distinct from the larger majority, prior to reaching the critical mass threshold. Instead, such a group is likely to conform to the behavior exhibited by the larger majority. Therefore, the importance of reaching a critical mass has been described in terms of exhibition of differences in behavior among minority group members (Oliver & Marwell, 2001).
The critical mass theory illustrated above can be applied to a judicial situation. In this case, the main focus is to learn if there is a higher likelihood for female jurist to display a certain decision-making pattern when serving with other women. In the
As mentioned earlier, an assertion held by critical mass theory is that the presence of minority group members in significant numbers can significantly affect the behavior of that group. If the theory is considered valid, then it would be necessary for questions regarding gender differences among judges to take into consideration the degree of women representation on the bench, at least to some extent. A hypothesis that can be formulated is that women will decide cases differently from men when serving on the bench with other women. Although, there is substantial evidence to support this hypothesis, there is lack of uniformity in the impact of critical mass environments and gender across all policy areas. It is undoubtedly evident that gender differences are prevalent in cases of criminal justice. In such cases, there is a high likelihood for women to make a more liberal decision compared to male judges, provided a critical mass has been reached. Additionally, gender has been found to play a fundamental role in cases regarding civil rights and liberties (Oliver, 2001).
The results obtained by relating critical mass to gender differences in court decisions may serve to explain the inconsistencies observed in previous research studies. While it is evident that gender influence differs across policy areas, it is also clear that gender impact may partly be affected by the presence of other women in judicial context. There is still a continued effort for women to overcome past discrimination and prejudice they have experienced in the legal sector. It is expected that in the future, more women will be represented on the bench. This is an indication that more women presence in specific locales could pose significant policy implications across the globe (Meernik, 2005).
According to Winter (2004), it appears that women influence their male counterparts hence changing the content of decisions from what the all-male panels render as ceteris paribus. Evidence found by judicial politics scholars indicate that the minds of both gender judges can be changed through a process of deliberation as well as strategic bargaining. The findings obtained are also consistent to the conclusion that the probability of male judges voting for the plaintiff is not increased by having majority of women on the panel. The increase in number only arises when one woman is in the panel. It is clear that these finding are contradictory to those obtained by Oliver (2001) based on the critical mass theory.
The idea that one woman plays a fundamental role in making antidiscrimination issues more liberal is a true demonstration of the majoritarian character associated with the voting process. This is owed to the fact that a strong institutional norm of unanimity mitigates it, and does not affect women’s representation. In order to develop a deeper understanding of how diversification of the judiciary into policy output by the majoritarian appellate panel structure, it is essential to thoroughly comprehend the dynamics associated with judges serving on panels as well as between panels and the larger circuit (Winter, 2004).
In an attempt to get the answer to the question on whether female and male judges view cases differently, Green & Heilbrun (2010) compares judges to baseball empires. A proposition made is that regardless of the fact that the decisions made by judges are constrained by judicial precedents and rules, there is still a chance for individual discretion. This would lead to a suggestion that the life experiences that women or other racial memories face may dispose them to making decisions that are different from their male counterparts. This is especially the case with cases related to race and gender such as harassment, sexual offenses and discrimination cases (Green, 2010).
However, the influence of personal characteristics may be trumped by the powerful forces associated with years of legal education and practice. A major role that legal socialization plays is that of broadening the knowledge base of attorneys and increasing their respect for precedent and legal compliance. Also, judges who have practiced law for several years prior to assuming the bench may be influenced less by personal characteristics when making judicial decisions (Madhavi, 2008).
Some evidence suggests that the judges of both genders handle stress differently. In this case male judges handle stress much better than female judges. Despite the differences is stress management and handling, the stresses of judging are considerable for both female and male judges. Most judges have sizable caseloads and hence subject to making unpopular decisions (Irwin & Daniel, 2011).
Since trial judges are human beings, they would tend to reflect their own assumptions experiences as well as biases when making judicial decisions from the bench. This is especially the case when there is some leeway such as sentencing range involved in the decision. Trial judges may have biases against specific groups including racial minorities, homosexuals, and older adults. This may greatly affect the way evidence is processes and decisions are made. Judges who have prosecutor experience have a high likelihood of maintaining their sympathy with the evidence of the state in criminal cases. Conversely, there is a high likelihood for judges who were defenders to be biased in the defendants’ favor (Greene, 2010).
Steffensmeier & Hebert (1999) have argued that it is possible to make a strong case from the viewpoint of minimalist that he effects of the judge’s gender would be insignificant, owed to the strong impact of socialization and selection to the judicial background, which play the fundamental role of offsetting any previous attitudes held by the judges. Studies investigating judicial backgrounds have shown that judges who are recruited to state trial courts have some common experiences and characteristics. Most of the judges are from the upper and middle social classes and attended different law schools in the state they are serving. Another common characteristic is that such judges frequently have legal experience in either public defender’s or prosecutor’s office. The process of judicial socialization further strengthens the similarities since it lays emphasis on the there factors involved in reaching judicial decisions (Steffensmeier, 1999).
Among the focal concerns considered when making judicial decisions is the degree of blameworthiness or harm caused by the offender to the victim. This can be drawn from the offense’s seriousness, the role of the offender in the offense and many more. The second focal concern is the community’s protection as indicated by past criminal history crime facts such as weapon employed, and many more. The third focal concern entails practical implications posed by the judicial decisions made. This may include an assurance of steady flow of cases, the cost incurred by the judicial system and the ability of the offender to do time (Flanagan & Ahern, 2011).
The courtroom work group often encourages adherence to the existing practices, norms, and precedents. The work group comprises of prosecutors, judges as well as public offenders who work collaboratively to process cases in an efficient manner. For example, members of the courtroom work group may informally develop a range of normal penalties for each form of crime in order to expedite sentencing. Despite the fact that judges may deviate from sentencing norms, from time, this is not a justification that the process of judicial socialization would be less or more effective among women judges than their male counterparts (Farhang, 2004).
A hypothesis that can be drawn from the information presented above is that the sentencing practices from male and female judges are less noteworthy for their differences than similarities. This implies that there are more similarities in the practices. For example, prior criminal history and offense severity can sway both female and male judges to the same degree. Both genders will portray sensitivity toward the process of plea bargaining as well as the disadvantages associated with the courtroom work group and too many trials in the county. Another hypothesis that can be formulated from the information is that the sentencing practices of women and men judges are similarly affected by the career characteristics and background of the judges (Epstein, et al. 2007).
On the contrary, there are a number of solid reasons that may lead to the belief that differences in past attitudes between women and men might be transferred to the judicial office and hence result to differences in sentencing practices based on gender of the judge. Fundamental differences remain in the effects of victimization and predatory criminality for women and men despite great efforts to promote greater gender equality in the American society. The prospective exposure to vulnerable and risky situation plays a larger role in shaping the routine activity patterns of women and their association with others. Consequently a, individual’s chances of victimization is increased (Boyd, et al. 2010).
Accordingly, females have greater concern for neighborhood protection, fear of crime and sensitivity to recidivism risk compared to their male counterparts. Evidence further suggests that there is a tendency for women to lean more toward a particularistic style during the process of policymaking. This is the main reason why women tend to be more concerned about preservation of relational webs of life, show sensitivity towards the needs of other people, and tend to be good at solving problems. Women policymakers tend to show greater concern towards that substance of the policy and legislation than with abstract precepts, contrary to their male counterparts who tend to focus more on the abstract precepts (Coontz, 2000).
Men social orientation often emphasizes on formal external recognition that is achieved through competition. This means that their decision making and morality are based more on universal principles of justice than individual morals and values. On the contrary, owed to gender role differences and fear of victimization, there is a high likelihood for women to be more moralistic (Collins, et al. 2010). This means that the judicial decisions they make would be based more on moral values rather than the universally accepted principles of justice. Additionally, they would tend to be more threatened by challenges posed by law and norms compared to their male counterparts. From this perspective, it can be presumed that attitudinal differences may contribute to inherent differences in judicial decisions made by female and male judges. This implies that judgments made by male and female judges would differ according to their individual attitudes, values, and beliefs (Collins, et al. 2008).
Conclusion
In conclusion, this literature review has indicated that while some research studies have shown insignificant differences between the judicial decisions made by male and female judges, some studies have indicated that female judges tend to judge differently from male judges. Those in support of inherent differences claim that this is especially the case with cases such as sexual harassment and discrimination. Women judges would tend to rule in favor of female victims while male judges would tend to rule in favor of male victims. The basis of the observed differences is differences in individual attitudes and experience. In opposition to this claim, authors in support of the fact that the difference in judicial decisions made by both sexes is insignificant, claim that the attitudinal differences are eliminated by learning and judicial socialization process. They assert that through experience and knowledge gained in law school judges learn to isolate their personal biases, opinions, beliefs and values from the principles and norms that should be adhered to when making judicial decisions. The reason for doing so is to promote fairness and justice in the legal system.
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