Commentary Law and Policy

Is “Moral Development” Behind The Unanimity Of Today’s Female Supreme Court Justices?

Sheila Bapat

Given the nature of court appointments, gender alone is probably not the root of the unanimity. It could be partisanship speaking loud and clear.

Soon after the Supreme Court’s health reform ruling last week, another hysterical Texts-from-Hillary meme surfaced in which Hillary Clinton texts Barack Obama, “Hey O, 3 of the 5 justices on our side were women. Just sayin.

True, all three women sided with the majority in upholding health reform, from which women stand to gain a lot. The meme could have also referenced the dissent in last week’s American Tradition Partnership v. Bullock, the case affirming Citizens United — Justices Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan all supported overruling the 2010 decision that allows an unlimited amount of corporate funds to support political races.

In fact, browsing through the Supreme Court’s opinions since 2010 (when Justice Kagan joined the court) reveals a number of decisions on social issues in which the three women leaned the same way — notably, the gender discrimination case Wal-Mart Stores Inc. v. Dukes, the stay of execution case Leal Garcia v. Texas, and the life imprisonment for children case also decided last week Miller v. Alabama.

The fact that all three women on the Court leaned the same way on a number of cases dealing with social issues makes it hard not to talk about that old question: what are the implications of gender in the Supreme Court’s decisions? 

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When Dahlia Lithwick probed this topic in her 2009 piece The Fairer Sex,” Ruth Bader Ginsburg was the only female Justice on the Court. Today, thanks to President Obama’s decision to appoint both Sonia Sotomayor and Elena Kagan, we have the biggest sample size of women Justices in the Supreme Court’s history.

And in the gender-judicial impact analysis, higher numbers matter. Three out of nine is a pretty big deal — at 33 percent the Supreme Court has the highest share of women found in any of the three branches of government. Preeminent scholarship on women judges has found that increased numbers of women does influence judicial outcomes, at least at the district court level.

In their 2010 article “Gender, Critical Mass, and Judicial Decision Making,” scholars Paul Collins of the University of North Texas, Kenneth Manning of the University of Massachusetts at Dartmouth and Robert Carp of the University of Houston find that “women jurists exhibit distinctive behavior in certain cases when there is a critical mass of women at a [district] court.” Critical mass is a relative concept, but some scholars have identified it to exist when a minority group makes up more than 20 percent of the given institution.

Collins, Manning and Carp find that a critical mass of women judges in district courts have an impact on criminal justice outcomes, as well as civil rights and civil liberties outcomes. This recent scholarship aligns with psychologist Carol Gilligan’s longstanding belief that we should expect gendered differences in jurisprudence due to the “separate moral development of men and women.” Gilligan believes women’s moral nature should make them more sympathetic to women’s interests in the judiciary.

So is their unanimity reflective of their sympathy to women? As Sharon Lerner wrote in Slate last week, women stand to gain much from health reform. I argue that women have something to gain from limiting the amount of corporate money in politics as well, given that women tend to have less money to give and constitute such a small number of the most powerful political donors.

Given the nature of court appointments, gender alone is probably not the root of the unanimity. It could be partisanship speaking loud and clear. Ginsburg, Sotomayor and Kagan were all appointed by Democrats (President Clinton appointed Ginsburg). Democratic appointees to the Supreme Court consistently reflect Democratic policy on social issues. While there are prominent examples of Republican appointees like David Souter and Sandra Day O’Connor breaking ranks from their party’s social stances on notable occasions, this doesn’t seem to hold true with recent Democratic appointees.

Relevant also is that Democratic policies support feminist values more than Republican policies and tend to more adequately address the inequities and vulnerabilities women face. This truth may be why Ginsburg, Sotomayor, and Kagan were Democratic picks to begin with.

It is striking to see the double x’s fall on the same side on both of these critical decisions. There will always be scholarly dispute over the substantive impact of a judge’s gender on her jurisprudence — and happily there are many more forthcoming cases through which we can analyze the tendency of all three women to vote the same way. For the moment, the larger sample size on the Supreme Court is reason to celebrate.

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