Gender, Consciousness Raising, and Decision Making on the Supreme Court of Canada

By Jilani, Nadia A.; Songer, Donald R. et al. | Judicature, September/October 2010 | Go to article overview

Gender, Consciousness Raising, and Decision Making on the Supreme Court of Canada


Jilani, Nadia A., Songer, Donald R., Johnson, Susan W., Judicature


On April 21, 2009 the U.S. Supreme Court heard the case of a 13-year-old girl who was required by her school administrators to strip down to her underwear in an attempt to find contraband drugs. During the arguments an interesting discussion cropped up between Justices Breyer and Ginsburg:

Justice Breyer suggested that it's no big deal when kids strip. After all, they do it for gym class all the time, Savana Redding didn't reveal her body beyond her underclothes, said Breyer. Justice Ginsburg, the court's only female justice bristled, her eyes flashing with anger. She noted that there's no dispute that Savana was required, to shake out her bra and the crotch of her panties. Gmsburg seemed to all but shout, boys may like to preen in the locker room, but girls, particularly teenage girls, do not.1

Interestingly enough, Justice Breyer ended up voting with the majority opinion that the school administrators had violated the girl's Fourth Amendment rights. Could Breyer and the other male justices have been influenced by Ginsburg's impassioned rebuttal?

The possibility that gender influences judge and justice decision making has long been a topic of interest. Most such studies attempt to determine if there are differences in the perspectives of male and female justices and how these differing perspectives play out in the courtroom. In essence, do male and female justices vote differently? Other studies attempt to ascertain whether women judge the same when there are token numbers on the court as when there is a significant, critical mass.2

But as the above example suggests, another possibility exists; one in which women provide a consciousness-raising experience for men on the bench. Essentially, we are asking if die ultimate votes of male justices may be influenced by differences in perspective raised by female justices that otherwise would not have entered into the decision calculus of the male judges.

We look at the Canadian Supreme Court in an attempt to determine whether the presence and increasing number of women on the bench might influence male justices' votes in three areas of law; criminal cases, civil liberties cases, and a subset of civil liberties cases dealing with issues of equality. The Canadian Supreme Court, with four out of nine justices being female, provides an ideal case for our inquiry. We are able to look at patterns of male voting from 1976, a time when there were no women on the Court, to 2007, a time with the current four women. We find that there do appear to be patterns in male justice voting that mimic those of female justice voting after women begin taking part in the decision of cases. Similarly, the number of women on the Court appears to bear some influence on how men vote in civil liberties, equality, and criminal cases.

Gender differences in voting

Though a wealth of literature exists on the effects of gender on judging, very few take into account the possible consciousness-raising role that women judges may play. Courts and legal scholars have conducted numerous studies of possible differences in voting patterns between male and female judges and justices.3 These studies have resulted in mixed findings. Several inquiries have found that women tend to vote more liberally in specific issue areas, namely those in which women are directly impacted.4 However, other studies have found that women do not vote significantly differently than men.5

Even female judges and justices themselves disagree over whether or not their gender makes them judge differently than men. Sandra Day O'Connor, the first female justice appointed to the U.S. Supreme Court, once stated that "there's simply no empirical evidence that gender differences lead to discernable differences in renderingjudgment."6 However, the first female justice appointed to the Canadian Supreme Court, Bertha Wilson, argues that "gender difference has been a significant factor in judicial decision making, particularly in the areas of tort, criminal, and family law. …

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