Gender and the U.S. Supreme Court: An Analysis of Voting Behavior in Gender-Based Claims and Civil-Rights and Economic-Activity Cases

Article excerpt

Although several studies examine the influence of gender in the U.S. Supreme Court, research is still unsettled regarding the overall influence of gender in the voting behavior of Supreme Court justices. Employing data from Harold Spaeth's U.S. Supreme Court Databases, I systematically examine the extent to which gender influences individual Supreme Court justices' voting decisions across four issue areas. I find that although gender does not appear to influence the voting behavior of Supreme Court justices in civil-rights cases, male and female justices vote significantly differently in cases involving sex discrimination, reproductive rights, and economic activity.

The vacancies left by Justice David Souter and Justice John Paul Stevens presented President Obama with the rare opportunity to appoint two new members to the U.S. Supreme Court. President Obama's nomination, and the subsequent appointments, of Sonia Sotomayor and Elena Kagan has drawn attention to the criteria presidents use when selecting candidates to the Supreme Court, particularly whether gender, race, and ethnicity should be taken into account. After learning of President G. W. Bush's nomination of now Chief Justice John Roberts as her replacement, retired Justice O'Connor commented, "He's good in every way, except he's not a woman" (Landers, 2005:A1). Some believe it is important to have a "representative" Supreme Court, while others feel that background characteristics such as race, gender, and ethnicity are of little significance, and the sole criterion for selecting a nominee should be judicial qualifications.1 A question this discussion raises is whether personal characteristics of judges, such as gender, influence the decision-making process of the Supreme Court. Is gender irrelevant to judging, or have Justice Sandra Day O'Connor and Justice Ruth Bader Ginsburg brought a different judicial perspective to the bench? Does it make a difference whether both male and female justices serve on the U.S. Supreme Court?

In recent years, judicial scholars have begun to devote attention to exploring whether behavioral differences are apparent in the decisions male and female judges make (see, e.g., O'Connor and Segal, 1990; Songer, Davis, and Haire, 1994; Martin and Pyle, 2000). Much of this research, however, focuses on examining state supreme courts, U.S. District Courts, and the U.S. Courts of Appeals, while few studies look at the U.S. Supreme Court. Surprisingly, we really have little evidence about whether or not the behavior of male and female Supreme Court justices, while controlling for ideology, differs over a range of issue areas. This article assesses whether differences persist in the final voting decisions of male and female Supreme Court justices across four issue areas: sex discrimination, reproductive rights, civil rights, and economic activity.

THEORY

Some legal scholars conclude that as the number of female attorneys and judges continues to grow, we are much more likely to observe differences between male and female judges, as well as see women having a profound effect on law (see, e.g., Menkel-Meadow, 1985). The major goal of this research is to assess whether the voting patterns of the first two female justices to serve on the U.S. Supreme Court differ from that of their male colleagues. That is, are Justice O'Connor and Justice Ginsburg more likely to vote liberally than the male justices serving on the Court in cases involving gender-based claims (sex discrimination and reproductive rights), civil rights, and economic activity. There are two primary explanations that provide the basis for expecting that Justice O'Connor and Justice Ginsburg will cast more liberal votes than their male counterparts-"different voice" theory and the belief that the role orientations of male and female judges differ and, thus, female judges substantively represent and act on the behalf of women.

"Different Voice" Theory. Research has shown that a gender gap exists between men and women in regards to compassion issues, attitudes toward violence and war, the economy, and partisanship. …