Gendered justice: Do male and female judges rule differently on questions of gay rights?

Stanford Law Review

Volumn 57, Issue 6, 2005, Pages 2087-2134

  Smith Jr , Fred O ^a  

^a NONE

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EID: 33645962470     PISSN: 00389765     EISSN: None     Source Type: Journal    
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References (159)

1. Cf. W.E.B. DUBOIS, THE SOULS OF BLACK FOLK 35 (Penguin Books 1989) (1903) ("The problem of the Twentieth Century is the problem of the color-line.").
2. I borrow this Part's title from Paula Giddings's historical work on African American women's political role. See PAULA GIDDINGS, WHEN AND WHERE I ENTER: THE IMPACT OF BLACK WOMEN ON RACE AND SEX IN AMERICA (1996).
3. A Lexis-Nexis search of major newspapers revealed that in 2004, the phrase "gay rights" occurred over three thousand times.
4. 539 U.S. 508 (2003).
5. 798 N.E.2d 941 (Mass. 2003).
6. See Katherine M. Franke, The Domesticated Liberty of Lawrence v. Texas, 104 COLUM. L. REV. 1399 (2004).
7. See Harry Willekens, Is Contemporary Western Family Law Historically Unique?, 28 J. FAM. HIST. 70 (2003).
8. Two pieces by Barbara Palmer effectively document this reality: Barbara Palmer, "To Justify": The Integration of Women in the American Judiciary, 34 PS: POL. SCI. & POL. 235 (2001) [hereinafter Palmer, "To Justify"];
9. and Barbara Palmer, Women in the American Judiciary: Their Influence and Impact, 23 WOMEN & POL. 89 (2001).
10. See Palmer, "To Justify," supra note 8, at 236.
11. For a treatment of women's current experiences in law school, see COMM'N ON WOMEN IN THE PROFESSION, AM. BAR ASS'N, ELUSIVE EQUALITY: THE EXPERIENCES OF WOMEN IN LEGAL EDUCATION (1996).
12. For further data on the appointment and biographies of federal judges, see Fed. Judicial Ctr., Federal Judicial Center, at http://www.fjc.gov (last visited May 6, 2005).
13. See, e.g., Herbert M. Kritzer & Thomas M. Uhlman, Sisterhood in the Courtroom: Sex of Judge and Defendant in Criminal Case Disposition, 14 SOC. SCI. Q. 77 (1977).
14. Id. at 86, quoted in David Songer et al., A Reappraisal of Diversification in the Federal Courts: Gender Effects in the Court of Appeals, 56 J. POL. 425, 426 (1994).
15. See, e.g., Sue Davis, Impact of President Carter's Judicial Selection Reforms: A Voting Analysis of the United States Court of Appeals, 14 AM. POL. Q. 328 (1986).
16. See, e.g., Beverly B. Cook, Will Women Judges Make a Difference in Women's Legal Rights?, in WOMEN, POWER, AND POLITICAL SYSTEMS 216 (Margherita N. Rendel ed. 1981);
17. David W. Allen & Diane E. Wall, The Behavior of Women State Supreme Court Justices: Are They Tokens or Outsiders?, 12 JUST. SYS. J. 232 (1987);
18. Sue Davis, Do Women Judges Speak "In a Different Voice? " Carol Gilligan, Feminist Legal Theory and the Ninth Circuit, 8 WIS. WOMEN'S L.J. 143 (1992-1993). The work of Songer et al., supra note 12, which includes a metaanalysis of prior research, was particularly helpful in locating these sources. Some of these studies were plagued by small sample sizes and poor methodology. David Allen and Diane Wall's work failed to control for variables such as party. For a further enumeration of the flaws in Allen and Wall's work, see infra note 116.
19. See Songer et al., supra note 12, at 428.
20. Id. Subsequent research has tended to bolster this finding. An unpublished 2002 paper by Tajuana Massie, Susan W. Johnson, and Sara Margaret Gubala found that women on the federal courts of appeals exert liberal influence on sex discrimination cases and conservative influence in criminal search and seizure cases. Tajuana Massie et al., The Impact of Gender and Race in the Decisions of Judges on the United States Courts of Appeals (2002) (unpublished manuscript, paper prepared for the 2002 Midwest Political Science Association Meeting), available at http://www.cla.sc.edu/poli/psrw/ MassieJohnsonGubala.pdf.
21. According to a Lexis-Nexis search, between the dates January 1, 2004, and August 31, 2004, only one article in major newspapers contained the phrase "criminal search and seizure."
22. See Karen M. Kaufmann & John R. Petrocik, The Changing Politics of American Men: Understanding the Sources of the Gender Gap, 43 AM. J. POL. SCI. 876 (1999).
23. That is, are female justices more liberal and do they react differently to legal questions based on inclusion?
24. See Songer et al., supra note 12, at 430.
25. President Carter appointed eleven women and, during the period of Songer's analysis, Presidents Reagan and Bush had appointed six. See id. at 426.
26. By "constitutional," I refer to the U.S. Constitution (namely the First Amendment's Freedom of Association Clause and germane Fifth Amendment and Fourteenth Amendment precedent) and parallel portions of state constitutions.
27. In other words, was the judge appointed or elected?
28. In other words, when applicable, what party did the executive official belong to who appointed the judge?
29. BELLA ABZUG & MIM KELBER, GENDER GAP 1-6 (1984);
30. Kathleen A. Frankovic, Sex and Politics - New Alignments, Old Issues, 15 PS: POL. SCI. & POL. 439 (1981).
31. See Susan E. Howell & Christine L. Day, Complexities of the Gender Gap, 62 J. POL. 858 (2000).
32. See, e.g., Carole Kennedy Chaney et al., Explaining the Gender Gap in U.S. Presidential Elections, 1980-1992, 51 POL. RES. Q. 311 (1998);
33. Martin Gilens, Gender and Support for Reagan; A Comprehensive Model of Presidential Approval, 32 AM. J. POL. SCI. 19 (1988);
34. Margaret C. Trevor, Political Socialization, Party Identification, and the Gender Gap, 63 PUB. OPINION Q. 62 (1999).
35. See Sue Tolleson Rinehart & Jerry Perkins, The Intersection of Gender Politics and Religious Beliefs, 11 POL. BEHAV. 33 (1989).
36. See, e.g., Pei-Te Lein, Does the Gender Gap in Political Attitudes and Behavior Vary Across Racial Groups?, 51 POL. RES. Q. 869 (1998);
37. Susan Welch & Lee Sigelman, A Gender Gap Among Hispanics? A Comparison with Blacks and Anglos, W. POL. Q. 181 (1992).
38. See, e.g., Jeff Manza & Clem Brooks, The Gender Gap in U.S. Presidential Elections: When? Why? Implications?, 103 AM. J. SOC. 1235 (1998).
39. See, e.g., KRISTEN LUKER, ABORTION AND THE POLITICS OF MOTHERHOOD (1984).
40. See, e.g., WOMEN TRANSFORMING CONGRESS (Cindy Simon Rosenthal ed., 2002);
41. Edmund Constantini & Kenneth H. Craik, Women as Politicians: The Social Background, Personality and Careers of Female Party Leaders, 28 J. SOC. ISSUES 217 (1972);
42. Kathleen A. Frankovic, Sex and Voting in the U.S. House of Representatives 1961-1975, 5 AM. POL. Q. 315 (1977);
43. Freida L. Gehlen, Women Members of Congress: A Distinctive Role, in A PORTRAIT OF MARGINALITY 304 (Marianne Githens & Jewell L. Prestige eds., 1977);
44. Susan Welch, Are Women More Liberal than Men in the U.S. Congress?, 10 LEGIS. STUD. Q. 125 (1985).
45. See HANNAH FENICHEL PITKIN, THE CONCEPT OF REPRESENTATION (1972).
46. See generally KENNETH WHITBY, THE COLOR OF REPRESENTATION: CONGRESSIONAL BEHAVIOR AND BLACK INTERESTS (1997);
47. Cindy Simon Rosenthal, The Role of Gender in Descriptive Representation, 48 POL. RES. Q. 599 (1995).
48. As examples of research validating descriptive representation, see KATHERINE TATE, BLACK FACES IN THE MIRROR: AFRICAN-AMERICANS AND THEIR REPRESENTATIVES IN CONGRESS (2003),
49. and Jane Mansbridge, Should Blacks Represent Blacks and Women Represent Women? A Contingent Yes, 61 J. POL. 628 (1999).
50. But see CAROL M. SWAIN, BLACK FACES, BLACK INTERESTS: THE REPRESENTATION OF AFRICAN AMERICANS IN CONGRESS (1993) (claiming that efforts to maximize descriptive representation in Congress came at the expense of substantive representation);
51. ABIGAIL M. THERNSTROM, WHOSE VOTE COUNTS? AFFIRMATIVE ACTION AND MINORITY VOTING RIGHTS (1987) (explaining that descriptive representation and substantive representation are severable, especially in the context of voting rights).
52. Mansbridge, supra note 35, at 641.
53. See generally TATE, supra note 35. Also, Part III of this Note discusses the link between descriptive representation and substantive representation more thoroughly.
54. A pioneering work in this debate was V.O. KEY, POLITICS, PARTIES AND PRESSURE GROUPS (1942).
55. See, e.g., ROBERT SHAPIRO & BENJAMIN PAGE, THE RATIONAL PUBLIC (1992).
56. See, e.g., JOHN ZALLER, THE NATURE AND ORIGINS OF MASS PUBLIC OPINION (1994).
57. See Songer et al., supra note 12, at 426-27.
58. In Part I, I provide General Social Survey data that demonstrate correlations between gender and opinions about homosexuality.
59. See Fed. Judicial Ctr., supra note 10.
60. ALMANAC OF THE FEDERAL JUDICIARY (Susan Alexander ed., 1984-2003) (semiannual publication).
61. THE AMERICAN BENCH: JUDGES OF THE NATION (M. Reincke & J.C. Wilhelmi eds., 7th-27th eds. 1983-2003) [hereinafter AMERICAN BENCH].
62. Among the cases examined is the U.S. Supreme Court's landmark equal protection decision in Romer v. Evans, 517 U.S. 620 (1996). The case involved a Colorado state constitutional amendment that, in the words of Justice Ruth Bader Ginsburg, in effect stated that gays "shall not participate in the political process, period." Transcript of Oral Argument, Romer, 517 U.S. 620 (No. 94-1039), available at 1995 WL 605822. The amendment forbade local governments from passing ordinances protecting individuals from discrimination on the basis of sexual orientation. The Supreme Court found in a 6-3 decision that no rational basis underlay this amendment and overturned it, with both women ruling in the majority. In addition to cases that have dealt with the exclusion of gays from the political process, courts have also used equal protection clauses in cases dealing with gay adoption rights. Indeed, state courts of last resort have addressed the topic with diverging results. The New Hampshire Supreme Court, for example, ruled in 1987 that it was constitutionally permissible to bar gays from adopting, see Opinion of the Justices, 525 A.2d 1095 (N.H. 1987). Additionally, the State of Florida addressed the issue in Cox v. State Department of Health and Rehabilitative Services, 656 So. 2d 902 (Fla. 1995). The Florida case involved a law that barred gays from adopting in the state, and the state supreme court remanded the issue for further proceedings, concluding that the factual record was too incomplete to issue an opinion. Further, at the federal level, the Eleventh Circuit Court of Appeals ruled in 2004 that Florida's ban was constitutional. See Lofton v. Sec'y of the Dep't of Children and Family Servs., 358 F.3d 804 (11th Cir. 2004), en banc reh'g denied, 377 F.3d 1275 (2004). In response to the court's denial of an en banc rehearing, Judge Rosemary Barkett wrote a strongly argued dissent, issuing legal conclusions on the merits. Lofton, 377 F.3d at 1290 (Barkett, J., dissenting from denial of rehearing). Courts have also used equal protection principles to address an issue that may rival gay adoption in controversy: gay marriage rights. State appellate courts of last resort in Hawaii, Vermont, and Massachusetts have addressed the question. See Baehr v. Lewin, 852 P.2d 44 (Haw. 1993); Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003); Baker v. State, 744 A.2d 864 (Vt. 1999). The issues enumerated in this footnote are not exhaustive. See Appendix A for a full list of germane cases.
63. One of the most prominent cases dealing with gay Americans' right to privacy arrived in 1986. The case was Bowers v. Hardwick, 478 U.S. 186 (1986). In the 1980s, police arrested an Atlanta resident for engaging in consensual sodomy with a member of the same sex. While the charges were eventually dropped, the man whom police arrested challenged the law, invoking the Due Process Clause. The Supreme Court ruled that the Georgia sodomy statute survived constitutional scrutiny, ruling that as an agent of the federal judiciary, the Court was not "inclined to take a more expansive view of our authority to discover the fundamental rights imbedded in the Due Process Clause." Id. at 194. The majority in this 5-4 decision further reasoned that if they ruled in favor of the appellant, "it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home." Id. at 195. After this decision, the movement to overturn statutes banning same-sex conduct moved to state courts and legislatures. During the time period explored in this paper (1983-2003), ten state appellate courts addressed the constitutionality of statutes that (1) ban same-sex sodomy or (2) ban both opposite-sex and same-sex sodomy. Six of these ten courts found that these statutes violated their state constitutions. These six states were Arkansas, see Jegley v. Picado, 80 S.W.3d 332 (Ark. 2002), Georgia, see Powell v. State, 510 S.E.2d 18 (Ga. 1998), Kentucky, see Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1992), Montana, see Gryczan v. State, 942 P.2d 112 (Mont. 1997), Oklahoma, see Post v. State, 715 P.2d 1105 (Okla. Crim. App. 1986), and Tennessee, see Campbell v. Sundquist, 926 S.W.2d 250 (Tenn. Ct. App. 1996). Appellate courts in Louisiana, see State v. Smith, 766 So. 2d 501 (La. 2000), Missouri, see State v. Walsh, 713 S.W.2d 508 (Mo. 1986), Rhode Island, see State v. Santos, 413 A.2d 58 (R.I. 1980), and Texas, see State v. Morales, 869 S.W.2d 941 (Tex. 1994), ruled the opposite way on this issue. In 2003, however, the U.S. Supreme Court revisited the question, and found that all sodomy statutes - same-sex and opposite-sex alike - violated fundamental privacy rights under the federal Constitution's Due Process Clause. See Lawrence v. Texas, 539 U.S. 508 (2003).
64. I say "generally" because I also include a few cases in which individuals challenged the constitutionality of statutes protecting gay rights. Two cases that have served as particularly high-profile examples of cases in which gay rights laws were successfully challenged via the Freedom of Association Clause of the First Amendment are Hurley v. Irish-American Gay, Lesbian and Bisexual Group, 515 U.S. 557 (1995), and Boy Scouts of America v. Dale, 530 U.S. 640 (2000). In Hurley, the U.S. Supreme Court unanimously overturned a decision by the Massachusetts Supreme Court, ruling that an Irish group could not be forced to allow a gay Irish organization to march in its parade. And a few years later, a divided court ruled in Dale that the Boy Scouts had a constitutional right to remove openly gay individuals from leadership roles.
65. The term "court of last resort" refers to the highest state appellate court. This is often, though not always, the state's "supreme court."
66. "Act," here, means more than a law or statute. It refers to the broader definition, "the process of doing or performing." BLACK'S LAW DICTIONARY 26 (8th ed. 1999). Under this conception, examples of governmental acts include certain hiring decisions or policing practices in which government deeds or performances may not be tied to official law or even policies.
67. Specifically, this Note analyzes judicial conclusions on due process, equal protection, and First Amendment questions centered around gay rights.
68. One can imagine cases termed "gay rights" that do not implicate constitutional rights. Indeed, during the time period reviewed in this Note, such cases might include child custody cases, sexual harassment issues, and private employment disputes. The law on each of these issues, however, varies widely from state to state. See generally WILLIAM RUBENSTEIN, SEXUAL ORIENTATION AND THE LAW 433-506 (1996). In addition, these types of cases implicate complex and varied fact patterns that would heavily complicate any attempts to measure whether male and female judges rule differently. Therefore, this Note adopts an alternative methodology and looks at whether judges ruled that acts, laws, or sets of laws violate gays' constitutional rights, avoiding some of the complications involved in private disputes.
69. Another demographic factor one might consider controlling for is race. However, identifying the race of the state judges proved particularly difficult. The biographical, survey-based data from judges in AMERICAN BENCH, supra note 45, and the documents from the Federal Judicial Center showed that about twenty of the legal conclusion scores in this Note were produced by black Americans. Due to my uncertainty, however, about how many others in the sample were also black, controlling for race would have been counterproductive. Further, among the twenty judges in the sample that were identified as black, there was not a statistically significant relationship between race and legal conclusion scores (p-value = .576).
70. BLACK'S LAW DICTIONARY 1125 (8th ed. 1999).
71. This figure is comparable to the judiciary more generally. About twenty percent of the federal judiciary is female, according to Federal Judicial Center documents. See Fed. Judicial Ctr., supra note 10. Further, women make up about a quarter of judges on state courts of last resort. See COMM'N ON WOMEN IN THE PROFESSION, supra note 9.
72. See State v. Callaway, 542 P.2d 1147 (Ariz. Ct. App. 1975).
73. See New York v. Onofre, 415 N.E.2d 936 (N.Y. 1980).
74. Rhode Island originally addressed this question in 1980. See State v. Santos, 413 A.2d 58 (R.I. 1980).
75. See Harris v. State, 457 P.2d 638 (Alaska 1969).
76. The p-value equals .001, meaning that if there were no correlation between gender and conclusion scores, then 99.9% of the time, the apparent linkage caused by random noise would not be as strong as this link appears to be.
77. The term "p-value" is not one that frequently appears in legal journals. (According to a Lexis search, it appeared in just sixty-five articles in U.S. law journals in 2003). This fact - coupled with my heavy reliance on the statistical concept - demands that I explain it more carefully here. It is a theoretically and practically simple concept. A p-value of .05 means that if there were really no relationship between the variables analyzed, 95% of the time random fluctuations would not demonstrate a relationship as pronounced as the one observed. A p-value of .04 means random chance would not demonstrate a relationship as pronounced 96% of the time-.03, 97% of the time, and so on.
78. The odds ratio formula is as follows: [(Probability of option 1 in group a) / (Probability of option 2 in group a)] / [(Probability of option 1 in group b) / (Probability of option 2 in group b)].
79. Consider General Social Survey data - which indicates that age and opinions about homosexual marriage are correlated at a < .0005 level. The General Social Survey data is available online, see Nat'l Opinion Research Ctr. at the Univ. of Chi., General Social Survey 1972-2000 Cumulative Codebook, at http://webapp.icpsr.umich.edu/GSS (last visited May 6, 2005) [hereinafter GSS Website].
80. According to information available at Fed. Judicial Ctr., supra note 10, the oldest included judge was born in 1897 - the youngest in 1958.
81. This second regression produced a coefficient of -9.358.
82. According to information available at Fed. Judicial Ctr., supra note 10, the mean birth year for men was 1932, whereas for women it was 1938.
83. The coefficient estimate obtained without controlling for birth year is -0.264.
84. I am referring solely to the regions in which legal conclusion scores on gay rights were implicated - not the judiciary more generally.
85. Palmer, "To Justify," supra note 8, at 236.
86. See supra note 27.
87. By "affiliated," I primarily mean appointed by a Republican or Democrat. The vast majority of judges are technically nonpartisan. If a judge was elected rather than appointed, I generally did not assign them a partisan identifier, unless their self-provided biographies in works like AMERICAN BENCH, supra note 45, specifically mentioned a political party. Three-hundred seventy-nine of the 416 data points received a partisan identifier of Democrat, Republican, or nonpartisan. All federal judges received such a modifier, while some state judges did not. In part to account for this fact, later in this Note I control for whether a judge is a federal or state judge, and find gender gaps at both levels.
88. These totals do not equal 100% because of the presence of nonpartisan judges in the sample.
89. See supra note 48. As a reminder, in both Hurley and Dale it was not the gay litigants who charged that their constitutional rights were being violated. Rather, these cases involved appellants who challenged the enforcement of antidiscrimination laws - arguing that these laws violated the First Amendment. When these cases are removed, then, how does this affect the gender gap?
90. Excluding cases resolved on procedural grounds, there were 127 equal protection data points and 140 due process data points.
91. More females sided with gay plaintiffs on First Amendment cases than males. The p-value, however, was .66.
92. That is, questions implicating the First Amendment rights of gay Americans.
93. 478 U.S. 186 (1986).
94. 517 U.S. 620 (1996).
95. The number, more precisely, is 25.6. Method 1 also revealed a 26-point-difference in male and female legal conclusion scores.
96. The p-value is .004.
97. Pub. L. No. 104-199, 110 Stat. 2419 (1996).
98. The following served as useful references in analyzing the DOMA roll call vote and collecting congressional biographical information: MILDRED AMER, WOMEN IN THE UNITED STATES CONGRESS: 1917-2001 (2003);
99. ROBERT SINGH, THE CONGRESSIONAL BLACK CAUCUS: RACIAL POLITICS IN THE U.S. CONGRESS (1998); and Office of the Clerk, U.S. House of Representatives, at http://clerk.house.gov (last modified Apr. 29, 2005).
100. For further discussion of this trend, see CATHY COHEN, THE BOUNDARIES OF BLACKNESS: AIDS AND THE BREAKDOWN OF BLACK POLITICS (1999).
101. Among Democrats, 57.7% of black representatives voted against the bill, compared to 32.7% of white representatives - a 25-percentage-point gap. To find these numbers, I assessed roll call votes cataloged on Library of Congress, Thomas: Legislative Information on the Internet, at http://thomas.loc.gov/home/thomas.html (last visited May 6, 2005). I then identified the race of the representatives using SINGH, supra note 82, at 30-32.
102. THE FEDERALIST NO. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
103. THE FEDERALIST NO. 52, at 327 (James Madison) (Clinton Rossiter ed., 1961).
104. Songer et al., supra note 12, at 426.
105. The phrase "different voice" appears in the title of Davis, supra note 14.
106. See the discussion of Songer et al.'s work, supra note 12, in the Introduction. When doing so, consider that General Social Survey data suggests that men and women feel differently about the issue of pornography. In a sample size of 27,070 respondents, 48.2% of the females questioned expressed that they believe pornography should be illegal for all Americans, regardless of age - compared to 29.8% of men. Among those with 17-20 years of education, the gap remains. In this group, 37.3% of women answered that pornography should be illegal to all, compared to 22.6% of men. These claims are based on data from GSS Website, supra note 63.
107. For example, GSS data demonstrates that opinions about the morality of homosexuality and the legality of gay marriage are highly correlated. A linear regression of respondents' opinions of the morality of homosexuality on their opinions of whether gay marriage should be legal produced a regression coefficient of -0.587, and a p-value of < .0005. Linear regression was the appropriate statistical model here because although the two variables are not continuous, the answers to both questions are ordinal. In the case of gay morality, the potential answers were "always wrong," "almost always wrong, "sometimes wrong," and "not wrong at all." For gay marriage legality, the potential responses were "strongly agree," "agree," "neither agree nor disagree," "disagree," and "strongly disagree," I provide more information about these two variables in the following pages.
108. GSS Website, supra note 63.
109. If the percentage of men and women who answered "always wrong" seems high, consider that I included all responses to the question between the years 1982 and 2003. I did this in order to ensure congruence between these dates and the dates found in my primary data set.
110. To get the 1.08 figure, I produced dummy scores of 0 and 1 to create binary variables. A score of 0 meant "always wrong" or "sometimes wrong," whereas the remaining responses received a score of 1. Compare 1.08 to the odds ratio that was revealed in Part I, related to legal conclusion scores. The odds of women receiving a legal conclusion score of 1 are about three times the odds of a man receiving this score. Yet, the odds of a woman approving of gay relationships are 1.08 times the odds of a man doing so. This number, a priori, is less than compelling.
111. A total of 40% of highly educated individuals answered "not wrong at all."
112. A linear regression with these variables produced a coefficient estimate of .10 and a p-value of < .0005.
113. The number of respondents here is 1843.
114. By "limited," I mean compared to questions about the morality of homosexuality - or the education variable.
115. Perhaps this question was only asked for three years because of its awkward - if not inaccurate - phraseology. See Nat'l Opinion Research Ctr. at the Univ. of Chi, supra note 63. In America, couples do not marry "one another" - that would be polygamy. Individuals within couples marry one another. A better question might read, "Do you agree or disagree? It should be legal for two members of the same sex to marry each other."
116. These scores signify that mere random chance would create a disparity this large only about 2% of the time.
117. These scores signify that mere random chance would create a disparity this large only somewhere between 5% and 10% of the time.
118. J.D. Droddy & C. Scott Peters, The Effect of Law School on Political Attitudes: Some Evidence from the Class of 2000, 53 J. LEGAL EDUC. 33 (2003).
119. The authors reported that there were no statistically significant differences between the group of students who completed both surveys and the group of students who only completed the first survey. Id. at 37.
120. The category "equal rights for women" placed first.
121. Droddy & Peters, supra note 101, at 45.
122. Id. at 43.
123. Id. at 41.
124. Droddy and Peters based their comparisons on National Election Survey data. Id. at 40-43.
125. Id. at 43.
126. See Massie et al., supra note 16, at 12 (finding that gender-based differences in federal appellate judges' rulings were pronounced in cases involving issues "traditionally considered to be 'women issues,' such as the discrimination against women in the workplace.").
127. See generally Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (exploring the link between gender stereotypes and gender discrimination).
128. See generally Larry R. Petersen & Gregory V. Donnenwerth, Religion and Declining Support for Traditional Beliefs About Gender Roles and Homosexual Rights, 59 SOC. RELIGION 353, 357 (1998) (noting that beliefs about traditional gender roles and "intolerance" toward gay rights are often concentrated in the same groups).
129. See LUKER, supra note 31.
130. See generally RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (1978);
131. JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL (1993);
132. Howard Gillman, What's Law Got to Do with It? Judicial Behavioralists Test the "Legal Model" of Judicial Decision Making, 26 LAW & SOC. INQUIRY 465 (2001).
133. Legal positivism is "[t]he theory that legal rules are valid only because they are enacted by an existing political authority or accepted as binding in a given society, not because they are grounded in morality or in natural law." BLACK'S LAW DICTIONARY 915 (8th ed. 1999). The theory asserts that social realities, rather than objective meritocratic notions, create the law.
134. One of the most recent examples of such a test occurred in 1999, when Darrell Steffensmeier and Chris Hebet explored whether gender influenced judges' sentencing decisions. They concluded that women dole out harsher penalties for certain subgroups of defendants. See Darrell Steffensmeier & Chris Hebert, Women and Men Policymakers: Does the Judge's Gender Affect the Sentencing of Criminal Defendants?, 77 SOC. FORCES 1163 (1999).
135. See Songer et al., supra note 12. Songer's work includes a concise metaanalysis of prior research on the role of gender in the American judiciary.
136. See Allen & Wall, supra note 14. For a moment, let us overlook the severe methodological and analytic problems with Allen and Wall's research and consider their conclusions at face value. I would be remiss, however, not at least to enumerate these flaws. One problem with their analysis is the fact that only twenty-four women were included in their "statistical" analysis. Worse, though, was the nebulous way they defined the arguably essentialist term "pro-woman." The closest they come to defining which cases they included in their research came in the following sentence: "Sex discrimination, sexual conduct and abuse, medical malpractice, property settlements, and the relationship between child and parent all appear to be viewed as integral parts of an agenda." Id. at 239. Whether malpractice and property settlements should be included in an analysis of the "pro-woman" nature of certain judges is a matter readers should consider as I cite this work.
137. See Massie et al., supra note 16; Songer et al., supra note 12.
138. See supra text accompanying notes 33-37 for definitions of the terms "descriptive" and "substantive" representation.
139. See generally Mansbridge, supra note 35.
140. Id. at 637.
141. Cindy Rosenthal has tested this empirical claim in a legislative context, and found differences in males' and females' representation conceptions. See ROSENTHAL, supra note 32, at 128. Katherine Tate has also tested the claim as it applies to race-based descriptive representation, see generally TATE, supra note 35. Compare this to arguments for the bonum in se nature of descriptive representation - arguments that it is beneficial for reasons unrelated to substantive representation. In one of Rosenthal's earlier works, she explores voters' preferences for gender-based descriptive representation. See generally Rosenthal, supra note 34.
142. This debate is not merely academic. In 2007, Congress will consider the reauthorization of the Voting Rights Act - and questions about the importance of descriptive representation surround the debate. The Act has led to increased descriptive representation in the political sphere, including the U.S. House of Representatives. Scholars such as Abigail Thernstrom and Carol Swain have questioned whether this descriptive representation is necessary. See SWAIN, supra note 35, at 5, 210-16; THERNSTROM, supra note 35, at 211-27. Alternatively, celebrated law professor Lani Guinier has questioned whether this form of representation is sufficient. See generally LANI GUINIER, THE TYRANNY OF THE MAJORITY (1994).
143. See, e.g., KEY, supra note 38.
144. JEFF MANZA ET AL., Introduction to NAVIGATING PUBLIC OPINION 28 (2002).
145. Id. at 17.
146. ZALLER, supra note 40.
147. The book received the American Political Science Association's Best Book Award in 1994.
148. ZALLER, supra note 40, at 42-47.
149. Id. at 48.
150. Id. at 321.
151. For a fuller discussion (and different perspective) on the interplay between the public and private realms of discourse, see Jurgen Habermas's seminal work, JURGEN HABERMAS, THE STRUCTURAL TRANSFORMATION OF THE PUBLIC SPHERE (1989).
152. One may even be able to test for evidence of whether the gender gap will expand in the future. Consider also monitoring gender gaps among undergraduates and finding gender gaps therein. If the linear relationship between education and opinions about homosexuality continues, one might expect these gaps to (1) only expand (due to self-selection) when these students enter law school, and, concomitantly, (2) be reproduced in the American judicial context.
153. In Lani Guinier's Becoming Gentlemen, for example, she explores the experiences of female law students in part through interviews and anecdotes, anecdotes that include her own. LANI GUINIER ET AL., BECOMING GENTLEMEN (1997).
154. See Droddy & Peters, supra note 101.
155. At least two pieces of evidence lend credence to the idea that women's level of gender-consciousness may increase while in law school. The first is the American Bar Association's 1996 Report, which discusses the "isolating elements" of the American law school experience and the extent to which women feel more isolated than men. COMM'N ON WOMEN IN THE PROFESSION, supra note 9, at 11-12.
156. One can infer that this may lead to increased gender-consciousness. The second piece of evidence is work done on African American public opinion which suggests that blacks' conceptions of "linked fate" have a positive associational relationship with education. "Linked fate" is the extent to which one views one's own self-interest as connected to one's group interest. See MICHAEL DAWSON, BEHIND THE MULE 77 (1994). By analogy, one might deduce that a similar trend may be present among women.
157. In cases in which a judge ruled twice in the same case - and rendered the same legal conclusion - only one score was recorded. Also, in Watkins v. United States Army, one case was included in which the common law contract principle of "equitable estoppel" was employed rather than an official due process right. This common law principle, however, acted as a due process right in the case in all but name.
158. This case indirectly implicates due process rights, relying on the "natural parents' legal rights" to reach their decision. See 619 N.E.2d at 320 n.5.
159. All variables on this chart are binary.