- Researchers who study courts have found
judges ' gender and racial identity impacts how cases are decided. - In sex discrimination cases, women are 15% more likely to rule in favor of the claimant than men.
- 74% of active federal judges are white and 67% of active federal judges are men.
In the spring of 2009, the Supreme Court was asked to decide whether officials at an Arizona school violated the Constitution when they put a 13-year-old girl through a strip search in the nurse's office. The school officials believed that the girl was hiding ibuprofen in her underwear.
During oral arguments, Justice Stephen Breyer wondered if it might have been reasonable for officials to think pills were in her underwear.
"In my experience, when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, OK? And in my experience, too, people did sometimes stick things in my underwear," he said, prompting laughter in the courtroom.
Justice Ruth Bader Ginsburg was not laughing. At the time of the hearing, she was the only female justice on the Supreme Court. "They have never been a 13-year-old girl," Ginsburg told a reporter at USA Today about her colleagues a couple of weeks later. "It's a very sensitive age for a girl. I didn't think that my colleagues, some of them, quite understood."
That summer the court sided with the girl.
It's impossible to know what went on behind the scenes and whether the late Justice Ginsburg swayed her colleagues. But it's incredibly likely that her presence, especially when she was the only woman on the court, influenced the outcome of this case and others.
Advocates for gender parity and racial diversity in federal courts often emphasize the importance of representation: Ginsburg was considered by many to be a role model for young girls aspiring to a legal career. But researchers who study the makeup of the courts have found judges' gender and racial identity affect how cases are decided.
"When you care about who is crafting the
In most issue areas, there's really no observable difference in how female and male judges behave, Boyd said. But she has found that a trial judge's gender and race have "very large effects" on their decision-making when the cases before them implicate sex, gender, or race.
These findings matter today because the US federal judiciary is still predominantly white and
male. About 74% of federal judges are white and 67% of federal judges are men, according to an Insider analysis of Federal Judicial Center data.
In sex-discrimination cases, women are about 15% as likely to rule in favor of the claimant as men. This was true even when accounting for age and political ideology, Boyd said.
Ginsburg addressed this in her 2009 interview with USA Today, speaking of her former colleague Sandra Day O'Connor, the first woman on the Supreme Court. "As often as Justice O'Connor and I have disagreed, because she is truly a Republican from Arizona, we were together in all the
"It's not just that female judges behave differently, but that they actually affect male judges' behavior," Boyd added. In her research on federal appeals courts, just one level below the Supreme Court, Boyd found that the presence of just one woman on a panel of three judges influences the court's decision. "You add that female judge to the panel, to the deliberations, it causes the male judges to rule differently," she said.
"In the law, there's this 'reasonable person' standard, and for decades the reasonable person was a white male cis perspective," said Theresa Lau, senior counsel on judges and courts at the National Women's Law Center. "If somebody is a woman or person of color they'll have a different outlook on life."
When it comes to gender, a judge's identity might have a significant effect in a case about pregnancy discrimination or abortion access. "Let's say you're deciding whether a law unfairly restricts the right to abortion," Lau said. "I guarantee you women will have a different perspective on what is an undue burden, especially if they come from a community that has historically faced restrictions to access to care."
"There are differences in the way judges of different backgrounds judge cases, but it really matters mostly when the identity or the difference speaks to something about the case," said Maya Sen, a professor at Harvard's John F. Kennedy School of Government.
Sen, who also studies the effects of diversity on judicial decisions, said it has been hard to study this topic in part because diversity on the bench is such a new phenomenon.
Researchers couldn't even begin to study it in earnest until after the 1970s, when President Jimmy Carter made judicial diversity a priority, according to Sen. Before that, federal judges were nearly all white and male.
Since then Boyd has found that racial identity affects how judges rule when race is at the heart of a case. Black judges are about 39% more likely to decide in favor of the race discrimination plaintiff than white judges. Another study found that African American judges were more than twice as likely to rule in favor of Voting Rights Act plaintiffs as white judges, and that the presence of just one nonwhite judge on a panel of judges was enough to influence its ruling.
Researchers have had a hard time studying the rulings of Latino, Asian American, Native American, and LGBTQ judges because there are so few of them, Sen said. "The numbers are so small that it's really impossible to firmly try to put a narrative on it," she said.
That hasn't stopped some judges from speculating how cases might have been decided differently in the past.
In March, US District Judge Edward M. Chen testified before a House committee on diversity in the judiciary. He brought the landmark case United States v. Korematsu, which upheld the government's internment of Japanese Americans.
"In justifying why Japanese Americans could be singled out for mass treatment, whereas Americans of German and Italian descent were not, the court opined that Japanese Americans were more prone to be disloyal and presented a military risk," Chen testified. "I ask the question: What if there had been a Japanese American Justice on the court?"