Female justices make a difference on higher courts

By CHRISTINA L. BOYD and LEE EPSTEIN

WASHINGTON — When Sandra Day O’Connor retired from the U.S. Supreme Court in 2005, national polls suggested that the public overwhelmingly supported replacing her with a female juror. O’Connor seemed to agree. “He’s good in every way, except he’s not a woman” is what she had to say about the nomination of John G. Roberts Jr.

Now, Justice David Souter is set to retire from the court, and President Obama is already facing similar pressure. Who might take Souter’s place? We’re already being introduced to Sonia Sotomayor, Elena Kagan and Pamela Karlan — all very accomplished individuals who happen to possess the one qualification that many commentators and court-watchers seem to agree is the most important this time around: They are women.

More than half the U.S. population is female. Nearly one-third of all U.S. lawyers are women. Approximately 30 percent of the judges serving on the lower federal courts are women.

Jurisprudence

But a diverse Supreme Court isn’t just about a bench that looks like America. This is about jurisprudence, too. In research that we conducted with our colleague Andrew Martin, we studied the votes of federal court of appeals judges in many areas of the law, from environmental cases to capital punishment and sex discrimination.

For the most part, we found no difference in the voting patterns of male and female judges, except when it comes to sex discrimination cases. There, we found that female judges are approximately 10 percent more likely to rule in favor of the party bringing the discrimination claim.

We also found that the presence of a female judge causes male judges to vote differently. When male and female judges serve together to decide a sex discrimination case, the male judges are nearly 15 percent more likely to rule in favor of the party alleging discrimination than when they sit with male judges only.

X Boyd is a PhD candidate in political science at Washington University in St. Louis. Epstein is a professor of law at Northwestern University.

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