Academic journal article Vanderbilt Law Review

Public Perceptions of Gender Bias in the Decisions of Female State Court Judges

Academic journal article Vanderbilt Law Review

Public Perceptions of Gender Bias in the Decisions of Female State Court Judges

Article excerpt

Introduction

Does judge gender affect how the public responds to state court decisions? The judicial community has long identified the existence of gender bias in the legal system and has made some progress in understanding and addressing this issue, partially through the use of gender bias task forces in many states and federal circuits in the late twentieth century.1 Additionally, over the past two decades, state courts of all levels have seen increases in gender diversity.2 Multiple factors underlie the call for increasing gender representation of the judiciary. Enhancing descriptive representation3 on the bench, at the very least, suggests that judicial institutions are accessible to women seeking to hold office4 and "reflects a degree of openness in the political process."5 More broadly, the presence of a judiciary that reflects the composition of the population potentially aids in conferring legitimacy on court decisions and authority. As Professor Linda Maule states: "A court system that does not reflect the membership of society breeds increasingly higher levels of disaffection and disillusionment. Thus, as more women are placed on the bench, the democratic regime is strengthened."6

Beyond descriptive representation, scholars and judges explain that women can provide a unique perspective, or "different voice," traditionally missing from state and federal judiciaries.7 Specifically, Professor Carol Gilligan suggests that differences in the way in which men and women conceptualize morality and navigate moral predicaments/dilemmas are seen as early as childhood, with women more likely to express an "ethic of care" reflecting values such as empathy, communication, and "connectedness."8 Building from Professor Gilligan's work, scholars have argued that female jurists, given differences in socialization, background, and experience, "will employ different legal reasoning, and will seek different results from the legal process."9 These differences can emerge in the legal reasoning and rationale used by women on the bench even when observable differences in the voting behavior of male and female jurists are not apparent.10

Finally, depending on the content of their jurisprudence, the inclusion of female judges can also promote the substantive representation of women's interests11 and create a court more "receptive" to the concerns of women.12 In the legislative arena, this substantive representation can manifest through emphasis on issues such as education, childcare, maternity politics, and policies that promote pay and workplace equality.13 In the courtroom, scholars consider votes in favor of the "women's position"14 in sex discrimination cases, family law, and reproductive policies, along with more liberal votes in general, as indicative of some degree of substantive representation in the judicial arena.15

Even though "perception of gender bias in a judge is more harmful to the legal system than its appearance in other participants,"16 we currently know very little regarding whether, or how, gender diversity of judges and judicial panels affects public opinion in the aftermath of state court rulings.17 Did this recognition by gender bias task forces mediate potential public perceptions of judicial decisions? Does the presence of more women on the bench provide court outcomes with greater legitimacy among the public as scholars suggest, or, given that women are generally considered "nontraditional" judges,18 is the public more likely to view the decisions of state female judges with greater uncertainty or scrutiny? In this Article, we examine how state judge gender affects the public's support of judicial outcomes and perceptions of judicial bias. Specifically, we explore whether respondents are more likely to perceive that gender and ideology influence the decisionmaking of female state judges (when compared to their male counterparts). Given gender stereotypes that can surround women in public office, and the act of judging specifically, we argue that the public is likely to perceive the decisions of male and female judges differently. …

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