Notre Dame Journal of Law, Ethics & Public Policy

Volume 28 | Issue 1 Article 10

May 2014 Intersectionality, Life Experience & Judicial Decision Making: A New View of Gender at the Supreme Court Angela Nicole Johnson

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Recommended Citation Angela N. Johnson, Intersectionality, Life Experience & Judicial Decision Making: A New View of Gender at the Supreme Court, 28 Notre Dame J.L. Ethics & Pub. Pol'y 353 (2014). Available at: http://scholarship.law.nd.edu/ndjlepp/vol28/iss1/10

This Note is brought to you for free and open access by the Notre Dame Journal of Law, Ethics & Public Policy at NDLScholarship. It has been accepted for inclusion in Notre Dame Journal of Law, Ethics & Public Policy by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. 34929-nde_28-1 Sheet No. 182 Side A 05/07/2014 15:37:06 ORLD , Feb. note 139 IMES & W EWS Many schol- , N.Y. T See infra 2 , U.S. N causes an impact. alone * Scholars proclaim that female Scholars proclaim OHNSON 3 J 353 ICOLE note 180 (Sandra Day O’Connor). N Justice Blocks Contraception Mandate on Insurance in Suit Justice Blocks Contraception Mandate on Insurance NGELA A see also infra Women’s Milestone: Majority on Minnesota Court Existing studies finding a gendered correlation Existing studies The Catholic Supreme Court’s War on Women 4 In response, commentators attacked the Justice and In response, commentators 1 (Dec. 31, 2013), http://www.nytimes.com/2014/01/01/us/politics/ JUDICIAL DECISION MAKING: DECISION JUDICIAL Part II.A. IMES See infra, INTERSECTIONALITY, LIFE EXPERIENCE & EXPERIENCE LIFE INTERSECTIONALITY, , N.Y. T (Jan. 7, 2014), http://www.usnews.com/opinion/blogs/jamie-stiehm/2014/01/ On New Year’s Day, acting at the request of an order of Catholic at the request of Year’s Day, acting On New 2. Jamie Stiehm, 3. 4. David Margolick, * B.A., Indiana University South J.D. Candidate, Notre Dame Law School, 2014; 1. Steve Kenny & Robert Pear, EPORT A NEW VIEW OF GENDER AT THE SUPREME COURT AT THE VIEW OF GENDER A NEW 22, 1991, at B16 (citing Justice Jeanne Coyne). Although Justice O’Connor is often credited as the mantra’s original author, it was actually Justice Jeanne Coyne, formerly of the Minnesota Supreme Court who said, “a wise old man and a wise old woman reach the same conclusion. In the vast majority of cases, [gender] will have no impact whatever.” Former and current Supreme Court justices disagree with this adage. (Justice Sonia Sotomayor); justice-sotomayor-blocks-contraception-mandate-in-health-law.html?_r=0. by Nuns Bend, 2011. for her ongoing mentorship and Many thanks to Dr. Elizabeth Bennion invaluable feedback on this Note. R (“[No] mercy for women on the Supreme 07/the-catholic-supreme-courts-war-on-women Court, not even from a woman”). \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 1 2-MAY-14 7:29 blamed her decision—one President Obama and viewed as betraying women’s rights—on Catholic. the fact that Sotomayor is This Note acknowledges the statistically significant correlation of gen- This Note acknowledges the statistically kinds of cases, but argues the rela- der on decision making in certain tionship is more nuanced. focusing on the impact of gender Instead of correlation is actually a result of as a biologically immutable factor, the individual experience. may generally share certain Although women discrimination, studies concluding kinds of experiences, such as gender miss the mark and contribute to that gender is the determinative factor a misalignment of scholarly focus.advocate instead for a more holistic I focus only on the sex of the decision maker while ignoring the exper- focus only on the sex of the decision iences of the individual judge. these studies tally-up the num- Because if any correlation is found, the ber of female votes versus male, conclusion is drawn at the outset—that gender judges vote with a “woman’s voice.”judges vote with a would agree, While some judges [will] reach the wise old man and a wise old woman others argue, “[a] same conclusion.” ars and judges have said that the presence of women in the judiciary said that the presence of women ars and judges have decision making. affects overall judicial nuns in Colorado, Justice Sotomayor temporarily blocked the Obama Justice Sotomayor temporarily blocked nuns in Colorado, from requiring under the Affordable Care Act, administration, acting coverage groups to provide health insurance some religiously affiliated of birth control. 34929-nde_28-1 Sheet No. 182 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 182 34929-nde_28-1 34929-nde_28-1 Sheet No. 182 Side B 05/07/2014 15:37:06 g ID- M amon [Vol. 28 HREE T Once a slot is 5 RIORITIES IN P OLICY P men, and differences AND , g ETHICS & PUBLIC POLICY amon LAW, ERCEPTION , P factors, rather than merely a compartmen- than merely rather factors, ENDER (2001) (unpublished Ph.D. thesis, University of Wisconsin- , G on any one isolated cause and effect. is highlighted by applying statistical studies examin- is highlighted by experiential ENNION solely EGISLATURES A. B Even if the members of the U.S. Supreme Court repre- Even if the members of the U.S. L 6 experience NOTRE DAME JOURNAL OF at 11. WESTERN TATE Id. S LIZABETH In support of my argument that each Justice contributes their own In support of my argument that each This Note examines previous research focused on gendered deci- on gendered research focused examines previous This Note 6. 5. One study found that when women comprise less than fifteen percent of an Madison) (on file with author). organization, women adhere to organizational norms to avoid stereotypes, resulting in the dominant institutional norm prevailing. In other words, the addition of too few “token” appointments will result in a failure to diversify the overall “voice” of the institu- tion. E 354 on based analysis \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 2 2-MAY-14 7:29 sented the demographic cross-section of society, the Court would still sented the demographic cross-section experiences that inform deci- not be reflective of the diverse possible sion making. in the area of gender and judicial Therefore, scholarship the experiences of the individual decision making should refocus on judge, and not unique experiences to the court, I compare the role of experiences, unique experiences to the court, I shared by women, to the role of which may be (but not necessarily) Chief Justice. unrelated to gender illustrates Adding a mutable variable of women and judging: no two how we might better think of the role will fulfill their duties in the same Chief Justices, just as no two women, manner. role of experience is complicated A broader analysis of the in many ways.because experience manifests itself Because each judge she may feel a moral or ethical brings a unique viewpoint to the bench, to help inform the decision making obligation to share her experiences of others. the individual’s experiences also By sharing her viewpoint, impact the decision making of her colleagues. This occurs in any scena- talized analysis of gender. analysis talized pol- public broader highlights approach This diversity. judicial for support and advances icy implications the U.S. and applies it to appellate courts at the federal sion making Court. the Roberts Court and particularly, Supreme on Past studies fail to statistically sound, size, although a large sample gender involving mak- judicial decision that informs the individual experience focus on ing. to bio- sample size of past studies, it is impractical Given the large personal each judge to determine whether graphically evaluate gender, impacts decision making.experience, not merely However the impact of ing intermediate appellate courts to the individual Justices at the appellate courts to the individual ing intermediate Supreme Court. commonly Moreover, examining the experiences of the such as women, permits an appreciation shared by one group, of experience on judges generally.broader implications Conversely, voice” works women judges as having a “woman’s compartmentalizing are then more judicial diversity, as women judges against advancing on the court as token appointments. likely to be placed women, remind us that gender is not an overriding or monolithic force women, remind us that gender is not of women and men in pub- differentiating the attitudes (and behavior) lic office.” filled, future appointments are less likely.filled, future appointments scholarship on As noted in gender in politics, “[d]ifferences 34929-nde_28-1 Sheet No. 182 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 182 34929-nde_28-1 34929-nde_28-1 Sheet No. 183 Side A 05/07/2014 15:37:06 355 , ABC work, collectively AKING M nals a Leaky Supreme Court g ECISION D UDICIAL J YSTIQUE OF Roberts’ Switch on Health Care Si M HE LIFE EXPERIENCE & JUDICIAL DECISION MAKING DECISION JUDICIAL & EXPERIENCE LIFE I. T Matt Negrin, The law and those who are involved in it yearn for predictabil- The law and those who are involved 7 See Although well-intentioned scholarship has pushed for more for has pushed scholarship well-intentioned Although Insight into judicial decision making, especially that of United Insight into judicial decision making, Part I explains the allure of judicial decision making.Part I explains the II exam- Part (July 2, 2012) http://abcnews.go.com/Politics/OTUS/chief-justice-john-robertss- 7. EWS N switch-obamacare-health-care/story?id=16698557 (“Candor and insight into a Supreme Court justice’s thought process are priceless . . . .”). 2014] any human in tendency is a natural and of gender, regardless rio, interaction. voice, have a different the basis that they the judiciary on women in for diver- arguments effectively advances on experience more focusing sity. a diverse judiciary—one Achieving representative comprised of populace—is felt by the entire experiences of public policy, as a matter judici- legitimacy in the support, trust, and public key to strengthening ary. race, social back- whether triggered by gender, Any experience, with other views of many causes, is combined ground, or an intersection and mode Justice, including political ideology held by each individual of constitutional interpretation. the individ- These variables comprise with one another or take precedence.ual and at times compete A com- beyond the scope of all experiential factors is prehensive examination of this paper. to focus on a as with gender, it is erroneous However, dismissing the label of “race” or “religion” while compartmentalized impact of experience. Instead, these characteristics \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 3 2-MAY-14 7:29 States Supreme Court Justices, is in high demand yet difficult to States Supreme Court Justices, is obtain. stabilize, our legal system.ity, which would drive, as well as With legal scholars, litigants, and emphasis on precedent and stare decisis, future of our legal system based engaged citizens seek certainty of the coupled with the tendency of any on what has already been decided, justice to vote in a particular way. Critics argue the Court is too secre- tive, that “[i]n the third and least covered branch of government, along with agents of socialization, education, occupation, etc., to shape of socialization, education, occupation, along with agents and inform decision making. one’s life experiences a correlation between judicial ines existing scholarship demonstrating decision making and gender. applies recent scholarship, which Part III to the U.S. Supreme Court.focuses on the federal appellate courts To informs judicial decision making, I better understand how experience gender felt by women who have address the experiences related to Supreme Court.served and are now serving on the Part IV compares commonly felt by women, the impact of gender, based on experiences the Chief Justice and how a Chief to the non-gender-specific role of for the benefit of others.Justice contributes his own experiences Part V experiential factors, including race, briefly draws comparisons to other religion, and socioeconomic status.Part VI ponders the consequence of morality, ethics, and public of experience on the broader concerns policy in judicial diversity. 34929-nde_28-1 Sheet No. 183 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 183 34929-nde_28-1 34929-nde_28-1 Sheet No. 183 Side B 05/07/2014 15:37:06 10 34 Of supra , paper 12 AKING g [Vol. 28 in OLITICS M g P Negrin, EFLECTIONS OF A : R ECISION MERICAN See also AW A D L at 87. Others find a correla- OURT IN Id. 13 C UDICIAL J AJESTY OF THE ration of Women into the American Judici- UPREME the Causal Effects of Sex on Jud g M ETHICS & PUBLIC POLICY g S HE lin HE g , T : T LAW, ENDER AND (June 10, 2009), http://www.slate.com/id/ Untan G ENTER ONNOR LATE personal investigations with Senate Judici- personal investigations Alternatively, if greater emphasis ought to Alternatively, if greater C , S O’C 11 This fuels a desire to predict future decision predict desire to fuels a This and AY TORM 8 In a “Different” Voice: What Does the Research About How Gender D “To Do Justly”: The Inte , S 24 (Craig Joyce ed., 2003) (arguing the federal judiciary is the 24 (Craig Joyce ed., 2003) (arguing the federal . 235, 237 (2001) (citations omitted). RIEN ANDRA OL Appointing a Justice is not a small undertaking. Appointing a Justice S CHOLARSHIP ON 9 Actually Say? USTICE g S J . & P in M. O’B Gender Discrimination Cases at the U.S. Courts of Appeal Gender Discrimination Cases at the U.S. g CI at 41 (detailing the investigatory process of advisors and the FBI). at 41 (detailing the investigatory process of NOTRE DAME JOURNAL OF . S OURT AVID Id. A. OL Id. But see C XISTING Research has “shown that female judges tend to be the strongest Research has “shown that female judges In pursuit of certainty, judicial nominees are subjected to rigorous nominees are of certainty, judicial In pursuit 12. Barbara Palmer, 11. disappointment in his Like other presidents, President Truman experienced 10. 9. D 13. Deborah Rhode, 8. secretive branch because it is the only one that publishes its opinions for everyone to secretive branch because it is the only one that , 34 P UPREME II. E ary note 7 (discussing Justice Robert’s vote with the “liberal” justices to uphold the Affordable note 7 (discussing Justice Robert’s vote with the Care Act). judicial appointments. He once said, “Whenever you put a man on the Supreme Court he judicial appointments. He once said, “Whenever ceases to be your friend. I’m sure of that.” felt he had misjudged his appointee: “He He of . . . .” hasn’t made one right decision that I can think (8th ed. 2008). 2220220/ (citing Christina Boyd et al., least see). presented at the 2008 annual meeting of the Midwest Political Science Association). Influences Jud S 356 is a hallmark.” secrecy may not lot of (needless) work when predictability Arguably, this is a “carry the day.” adequately pre- to the misconception that one can Due labels, many making based on compartmentalized dict future decision votes a judge labeled as “liberal” or “conservative” are shocked when contrary to expectations. \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 4 2-MAY-14 7:29 supporters of women’s rights claims, regardless of their ideology.” supporters of women’s rights claims, making by compartmentalizing any particular justice as “liberal” or “liberal” justice as any particular by compartmentalizing making as “woman.” and even “conservative” appointment process.throughout the scrutiny judicial Lifetime of any lasting legacies greatest and longest are among the appointments is political. and every appointment presidency, with Merit competes inter- compatibility, and ideological like personal other considerations, and the and opposition forces in Congress woven with the support White House. ary Committee grilling are justified to unearth more information. are justified to unearth more ary Committee grilling This candidates. serves to deter otherwise qualified is impractical and Thus, and “woman” “liberal” and “conservative,” or “man” using labels such as are viewed as more convenient—even if having a false sense of certainty accuracy. may bring reassurance at the cost of be given to each potential nominee’s individual life experiences, potential nominee’s individual be given to each exhaustive professional tion only in certain types of cases. instance, even though plaintiffs For or gender discrimination lost in the vast majority of sexual harassment thirty studies, approximately one-third found a correlation between a thirty studies, approximately one-third reach. judge’s gender and the decisions they 34929-nde_28-1 Sheet No. 183 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 183 34929-nde_28-1 34929-nde_28-1 Sheet No. 184 Side A 05/07/2014 15:37:06 R R g 17 357 NOF ’ SS More A L ’ 20 AT , N ial Decisionmakin g es g Judges appointed by Judges appointed 16 Additionally, each study Additionally, Further, the presence of a 15 19 (Aug. 2, 2013), http://www.nwlc.org/ see also Women in the Federal Judiciary: Still a . es Matter: Gender and Colle g ENTER L.J. 1759, 1776 (2005) (demonstrating that pro- L.J. 1759, 1776 (2005) (demonstrating that ALE Female Jud experience L. C S ’ Variations among studies are attributable to are attributable studies among Variations 14 114 Y OMEN W note 14, at 1776–77 appel- (study examined three-judge federal note 13. L ’ AT supra LIFE EXPERIENCE & JUDICIAL DECISION MAKING DECISION JUDICIAL & EXPERIENCE LIFE supra , N , http://www.nawj.org/us_state_court_statistics_2013.asp (women com- , http://www.nawj.org/us_state_court_statistics_2013.asp at 1778. For scholars, this fact is the key in demonstrating that gen- fact is the key in demonstrating For scholars, this See id. Id. Id. See 2013 Representation of United States State Court Women Jud See 2013 Representation of United States State Court UDGES J 18 The disclosure of an experience can even influence a colleague’s an experience can even influence The disclosure of Way to Go 20. 18. 19. 16. Rhode, 17. Peresie, 15. 14. Jennifer L. Peresie, Note, g OMEN late panels deciding cases involving female claimants alleging sexual harassment or gen- der discrimination in violation of Title VII of the Civil Rights Act of 1964; importantly, the study controlled for possible variables by limiting the time period studied to a timeframe with no significant changes in Supreme Court precedent or federal statutes). resource/women-federal-judiciary-still-long-way-go-1 (thirty-two percent of active judges resource/women-federal-judiciary-still-long-way-go-1 of appeal are female). currently sitting on the thirteen federal courts plaintiff decisions increased from twenty-two percent to forty-one percent in sex harass- plaintiff decisions increased from twenty-two percent in gender discrimination ment cases and from seventeen percent to twenty-eight cases). prise thirty-five percent of state final appellate jurisdiction judges and thirty-three percent prise thirty-five percent of state final appellate of intermediate appellate jurisdiction judges); Lon in the Federal Appellate Courts, W Republican-appointed female judges are more likely than Republican- female judges are more likely Republican-appointed discrimination to vote pro-plaintiff in gender appointed male judges cases. 2014] female judge with a to prevail as likely twice were nearly they appeals, panel. appellate on the \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 5 2-MAY-14 7:29 der—not party affiliation—plays just part in decision making. a As I to the voting however, by comparing these studies argue in Part III that while gen- Court Justices, it is apparent behavior of U.S. Supreme not gender itself affect decision making, it is der and party affiliation gendered that matters, it is decision making. judges’ voting behavior changes For instance, male panel.when a female is added to an appellate The presence of a the probability that a male judge female judge “more than doubled harassment cases (increasing the ruled for the plaintiff in sexual thirty-five percent) and nearly trip- probability from sixteen percent to cases (increasing [the odds] led this probability in sex discrimination from eleven percent to thirty percent).” the low sample size upon which to study. which size upon sample the low differs in time period, controlling law, types of cases decided, and juris- of cases decided, law, types time period, controlling differs in diction. as it is hard to control a challenge because also poses Ideology a variable. politi- bench lean to the on the federal For instance, women evenly distributed. men are more cal left while of party affiliation. female judge affects males regardless Democratic presidents found for gender discrimination plaintiffs more plaintiffs for gender discrimination presidents found Democratic female appointees, though Republican-appointed than Republican as Democratic- plaintiffs at about the same rate judges supported respectively). (twenty-nine and thirty percent appointed males reserved figures still nevertheless report a significant impact.reserved figures still nevertheless report Another the appellate panel, the likelihood study found when a woman is on favor of the plaintiff increased that a male colleague will rule in 34929-nde_28-1 Sheet No. 184 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 184 34929-nde_28-1 34929-nde_28-1 Sheet No. 184 Side B 05/07/2014 15:37:06 R R , 23 (2008) g [Vol. 28 g in g al Profession g OMEN AND THE That theory W By 1920, only 27 25 note 5, at 14 (diversity’s ISTORY OF supra , : A H AR B es ENNION g B ETHICS & PUBLIC POLICY Thus, even statistically conserva- even statistically Thus, the Causal Effects of Sex on Jud 21 g , and not merely gender, affects judi- , and not merely gender, lin LAW, But see g ARRED FROM THE Women Jud Untan A Timeline of Women’s History in the Le , B note 23). , http://womenaslawyers.files.wordpress.com/2011/03/ Myra Bradwell unsuccessfully argued to the Myra Bradwell unsuccessfully argued experience ARZA 24 supra G , AWYERS note 14, at 1782. L EDDA ARZA 22 28 supra (1996)). OMEN AS women) in the legal profession. women) in the legal Judge Morris was no doubt, the first to fine her husband for entering her (citing Bradwell v. Illinois, 83 U.S. 130 (1873)). W (citing G Gender Discrimination is a Unique Experience Shared Amon Gender Discrimination NOTRE DAME JOURNAL OF When practicing female attorney Alta Hulett passed away at the When practicing female attorney Alta Id. Id. Id. Id. Id. ainst ROFESSION g B. 26 P a To demonstrate how To demonstrate how legal profession very slowly.Women entered the 1868, three In Women continued to gain access to the legal profession and used Women continued to gain access to 23. Angela Nicole Johnson, 26. 25. 27. 28. 24. 21. Christina L. Boyd et al., 22. Peresie, ESEARCHING EGAL effect is felt only once women comprise at least fifteen percent of participants). effect is felt only once women comprise at least R courtroom in a ruckus over her new job; when he refused to pay, she packed him off to jail. a-timeline-of-womens-history-in-the-legal-profession-last-updated-6-20-11.pdf (last visited a-timeline-of-womens-history-in-the-legal-profession-last-updated-6-20-11.pdf Apr. 6, 2014) (citing H cial decision making, particularly with respect to gender discrimination particularly with respect to gender cial decision making, (and discrimina- presents a brief history of women cases, this Section tion school, making first to apply for admission to law women were the applicants. the first of many to deny women Columbia University L (paper presented at the 2008 annual meeting of the Midwest Political Science (paper presented at the 2008 annual meeting Association). Esther McQuigg Morris became the first woman judge in the United Esther McQuigg Morris became the justice of the peace in South Pass States when she was appointed as the City, Wyoming in 1870. 358 percent. and sixteen twelve between \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 6 2-MAY-14 7:29 age of twenty-three, newspapers considered this “proof” that women age of twenty-three, newspapers considered the legal profession. should stay away from the stresses of as lawyers.their skills to further women’s participation Burnita Shelton United States Supreme Court in 1873 that the Fourteenth Amendment United States Supreme Court in 1873 to practice law. protected her right to obtain a license tive studies provide strong evidence that the presence of a female judge of a the presence that evidence strong provide tive studies colleagues. male of her making the decision affects explores Section C correlation. this gendered explanations for competing a However, be limited.influence might woman’s the pres- found only One study affected the probability the appellate panel first woman on ence of the a second the addition of for the plaintiff; judge ruled that a male a pro- of rendering impact the likelihood not significantly female did plaintiff decision. fifteen women had been appointed or elected to even minor judicial fifteen women had been appointed roles. was advanced when Livinia Goodell died at the age of forty-one, just was advanced when Livinia Goodell the Wisconsin Supreme Court for one year after successfully battling her law license. 34929-nde_28-1 Sheet No. 184 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 184 34929-nde_28-1 34929-nde_28-1 Sheet No. 185 Side A 05/07/2014 15:37:06 R R EN- 359 In By G . 515, 32 33 Mary L. EV OMEN IN Sandra OING W , D 34 , a journal see also Three women USTICE LANCE AT , 8 FIU L. R J G 36 OING note 30); , D URRENT Title IX of the Higher Title IX supra , hts Law Reporter hts Law URIK g , A C 31 Gender Disparity URIK C. J e and Salary Workers by Detailed Occupa- g g forty-five percent of associates forty-five percent forty-six percent of law students & J note 37, at 516 (In 2010, 2011, and 2012, ANCY 38 & L. 1131 (2003) (describing President 39 Y ’ ROFESSION & N P OL ARTIN Women’s Ri Women’s , supra See First Year and Total J.D. Enrollment by Gender . P ARTIN OC ., www.bls.gov/cps/cpsaat39.pdf (statistics for 2012) ., www.bls.gov/cps/cpsaat39.pdf (statistics for , the first law school casebook addressing the topic, , the first law school casebook addressing the Ruth Bader Ginsburg, after promoting Ruth Bader Ginsburg, Gender Inequity in Pay Diminishes Women’s Prospects–and S M The The s of Full-Time Wa g 35 TATS (June 1, 2013, 4:40 AM), http://www.abajournal.com/ 30 OMEN IN THE . S ENDER Appointment of Women to the Federal Bench: His Other “Human Appointment of Women to the Federal Bench: His W HRLICH g AB , http://www.americanbar.org/content/dam/aba/administra- E L note 23. N OURNAL ’ note 23 (citing M NON ’ SS . U.J. G USAN Sterling & Recihman A M Women comprise thirty-three percent of all lawyers (a thirty-three percent of all lawyers Women comprise Laurel Bellows, supra supra UREAU LIFE EXPERIENCE & JUDICIAL DECISION MAKING DECISION JUDICIAL & EXPERIENCE LIFE OMM AR , ABA J 37 . B , 11 A M (citing S see also , U.S. B DER THE the Gap: Reflections on 20 Years Researchin , A Id. See Median Weekly Earnin Id. Id. See also Id. Id. Id. Sex-Based Discrimination That same year, Harvard Law School opened its doors to its doors opened School Law year, Harvard same That g 2 (2013). Carter’s Groundbreakin 29 AW Despite some high profile women in top law firms and judicial profile women in top law firms Despite some high atin 35. Johnson, 36. 37. 34. Johnson, 38. A.B.A. C 32. 33. among American law students Two years later, women’s representation 39. 29. 30. 31. g L 110 (2007)). hts” Record g tion and Sex 531 (2013); the Law Profession Ri Carter’s commitment to appointing women to Article III judgeships). Carter’s commitment to appointing women (last visited Apr. 6, 2014). after only two to three years of practice, Other studies indicate than her male counterpart; at seven years, the average full-time woman earned 5.2% less the difference increased to approximately 13%. Joyce S. Sterling & Nancy Reichman, Navi Clark, magazine/article/gender_inequity_in_pay_diminishes_womens_prospectsand_the_law_ profession/ (“Female equity partners in the 200 largest firms, who do comparable work to men, earn 89 percent of the compensation of their male peers.”). women made up 19.43%, 19.54% and 19.91% of all partners; these figures are not com- miserate with the proportion of women who are eligible for such promotion). 1947-2011 tive/legal_education_and_admissions_to_the_bar/statistics/jd_enrollment_1yr_total_ 6, 2014). gender.authcheckdam.pdf (last visited Apr. was coauthored by Ruth Bader Ginsburg in 1974. was coauthored by Ruth Bader Ginsburg in increased from nine percent to twenty. 2014] in court district on a federal to serve first woman the became Matthews 1950. \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 7 2-MAY-14 7:29 women for the first time. for the women four percent increase over a decade), four percent increase of legal scholarship focusing exclusively on women’s rights law, was women’s rights exclusively on scholarship focusing of legal in 1970. by Ruth Bader Ginsburg founded women’s advancement in the legal profession, became the second in the legal profession, became women’s advancement the U.S. Supreme Court in 1993. female Justice on yet only nineteen percent of partners, Education Act, which prohibits discrimination based on sex in the based on sex discrimination Act, which prohibits Education was enacted in 1972. hiring of faculty, of students and enrollment currently serve on the U.S. Supreme Court—thecurrently serve on largest number in history. show only nominal improvement.offices, recent numbers Full-time of their male paid a salary of seventy-seven percent women lawyers are counterparts. Day O’Connor became the first woman to serve on the United States the first woman to serve on Day O’Connor became 1981. Supreme Court in 1977, only eight women had served in the federal judiciary. 1977, only eight women response, law schools began to admit more women to their classes. to admit more women law schools began response, 34929-nde_28-1 Sheet No. 185 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 185 34929-nde_28-1 34929-nde_28-1 Sheet No. 185 Side B 05/07/2014 15:37:06 R OLLE- and C [Vol. 28 44 HE , 2008-2009 : T ., http://www. CHS CHS OURT C . L. S L. S M N ’ There are a dozen are a There A 43 SS N ’ 42 UPREME thirty-four percent of percent thirty-four SS . A Ms. JD, Women on Law Review: S M 40 , A As demonstrated in Part IV, 48 http://www.aals.org/statistics/2009dlt/ AW ON THE ETHICS & PUBLIC POLICY L note 15. http://ms-jd.org/files/lr2012_final.pdf. Addi- LAW, and advancement to partnership posi- to partnership and advancement RAFTING 45 supra available at , , ., C deans but only 20.6% of deans are women; 53.4% of deans but only 20.6% of deans are women; available at Explanations for Gendered Correlation ENTER from ten years prior), ten years from g assistant note 39. note 37. thirty percent of federal district court judges, and court judges, district of federal percent thirty L. C 2012, S 41 ’ decrease ALTZMAN ET AL Competin OMEN M W L -2009 AALS Statistical Report on Law Faculty Thus, when a female judge is called on to decide a case judge is called on to decide Thus, when a female enerally supra enerally supra ’ C. 8 g g (only one in three judges are female). AT NOTRE DAME JOURNAL OF 47 ORREST GIAL (2000) (arguing Supreme Court Justices adopt “tit-for-tat” strategies with one Because so many women in the legal profession have exper- women in the legal profession have Because so many Id. See See Id. Id. 200 professors are women while only 29.9% of full professorships are awarded to professors are women while only 29.9% of 46 AME Women in the legal profession still have a long way to go to achieve still have a long the legal profession Women in There are various explanations for why the presence of a woman There are various explanations for 48. F 47. 46. 45. 42. N 43. 44. of law students and law jour- Although women comprise a near-equal number 40. 41. G titles.html. Statistical Report on Law School Faculty aals.org/statistics/2009far/gender.html (last visited Feb. 27, 2013) (representing a nine aals.org/statistics/2009far/gender.html (last percent increase from 2002). A Gender Diversity Report, gender bias in comparing the percentage of tionally, women law students may perceive a within their law school. For instance, those employed in more prestigious positions women comprise 66.2% of nal members, they represent only 28.6% of editors in chief. nal members, they represent only 28.6% of editors assistant even when accounting for women’s women; age statistics indicate a gender disparity graduates. A delayed equality in the number of law school another). 360 percent (a four \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 8 2-MAY-14 7:29 equality. in law school sense an imbalance Women might first the issue is for many women judges, ienced gender discrimination, familiar. wit- not personally affected by discrimination, Even for those has a psycho- placed upon women in the judiciary nessing the hardships logical component—she colleagues to see the need only look to her disparity. involving gender discrimination, she is asked to decide an issue that has she is asked to decide involving gender discrimination, affected her personally. discrimina- She has experienced gender-based is aware of the discrimination, or at the very least, tion, witnessed such in the profession.history of discrimination the deci- Unsurprisingly, discrimina- of women judges is clearest in gender sion making impact tion cases. on a three-judge appellate panel affects her male colleagues’ decision on a three-judge appellate panel affects making. be felt as a gender-neutral conse- First, the impact may simply quence of judicial politics within a panel. thirty-two percent of federal circuit court judges. court circuit of federal percent thirty-two tions. this phenomenon exists in many contexts, regardless of the nature of this phenomenon exists in many contexts, occurs particularly when a Chief the case or gender of the judge, and Justice seeks unanimity or collegiality. Second, male judges may defer tenured law faculty, tenured district courts where no woman has ever served, and the Eighth and and the Eighth has ever served, where no woman district courts one woman serving. each have just Tenth Circuits later face discrimination in pay discrimination in later face 34929-nde_28-1 Sheet No. 185 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 185 34929-nde_28-1 34929-nde_28-1 Sheet No. 186 Side A 05/07/2014 15:37:06 R 361 50 the woman ical position g 1, 29 (2010). no matter which ideolo Way, Baby? The Influence of Attorney Gender on ENDER g . & G OL , 6 P g note 14, at 1784, 1787. Have We Come a Lon LIFE EXPERIENCE & JUDICIAL DECISION MAKING DECISION JUDICIAL & EXPERIENCE LIFE The surface factor of gender drives decision making. drives decision factor of gender The surface , supra 49 This third explanation is most desirable because the impact contin- This third explanation is most desirable are inherently more pro-plain- It is baseless to suggest that women 50. Peresie 49. Court Justices were more For example, one study found that U.S. Supreme a gender stereotype that women This is likely a reflection of the influence of lawyers are more capable of addressing these issues. In essence, gender acts as a heuristic for substantive legal expertise in these cases. As such, the Justices attach more credibility to the information presented by woman attorneys in these cases, and are therefore more likely to side with them. Supreme Court Decision Makin likely to side with female attorneys who presented oral argument in women’s rights cases likely to side with female attorneys who presented rights, materiality rights, and issues (sex discrimination and harassment, reproductive involving equal employment opportunity), attorney happens to be advocating in the case. John J. Szmer et al., 2014] information the considering deeply without colleagues female to their by proxy. voting thereby given, a occurs: effect a moderating Here, or colleagues female for his of respect out himself judge silences male biased—evenfear of appearing sexist—if the female plain- he opposes tiff’s claims. \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 9 2-MAY-14 7:29 ues and might apply in various cases involving other experiential fac- ues and might apply in various cases tors. expects insight on certain The premise is broad: one colleague whether shaped by gender, race, issues based on another’s experiences, age, social status, etc.gender discrimination cases are Of course, of a woman decision maker among those affected by the presence shared by women that may because it is an experience commonly inform their legal reasoning. such shared experiences Although domestic violence and include a statistically higher risk of experiencing explored a correlation of judicial sexual assault, to date no study has decision making. broad applicability and long-term Nevertheless, the of a diverse judiciary. effects serve to emphasize the value any case) on the basis that they tiff in gender discrimination cases (or their male colleagues.are more empathetic or kind than Eliminating and replacing it with gender- gender discrimination from the equation Third, male judges may seek input from a female colleague based on colleague input from a female judges may seek Third, male based on gender. but not or past experiences her viewpoint In this under- with his own that information the judge internalizes instance, standing. regardless of dialogues could occur among judges Similar gender.have a long-term gained is more likely to The information from a colleague judge has gained information impact because the he or she has not had.whose experience is lasting because The impact the page of a pol- emotional as opposed to words on it is personal and ished brief. of a neu- adverse litigation, the personal experience And in value. to the plaintiff) is assigned added tral party (as opposed Indeed, having a female the long-term benefits of one study demonstrated male judges panel in sexual harassment cases: judge on an appellate percent female-integrated panel were thirty-three who served on the sexual harass- a pro-plaintiff decision in future more likely to render panel. no female judge was serving on the ment cases even if 34929-nde_28-1 Sheet No. 186 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 186 34929-nde_28-1 34929-nde_28-1 Sheet No. 186 Side B 05/07/2014 15:37:06 R 33 the g fur- 52 [Vol. 28 1163, 1163 , Presentation at g ORCES . F OC , 77 J. S and securities law securities and Women and Men Policymakers: Does 303, 307 (2013) (“those embark- 51 Y ’ Since men are less likely to Since men are less note 5, at 153. OL , The Role of Gender in Determinin 53 . P ETHICS & PUBLIC POLICY gender discrimination. It is not, UB supra g , LAW, & P Gender and Securities Law in the Supreme Court, Gender and Securities Law in the Supreme Court, Expansively, any diverse experience can Expansively, any diverse experience ENNION THICS of Criminal Defendants? g 54 http://ase.tufts.edu/polsci/faculty/portney/gender.pdf J.L. E understandin Deliberation: An essay on Deliberative Democracy in the American g AME D . 1, 2 (2011) (a study of U.S. Supreme Court cases decided between . 1, 2 (2011) (a study of U.S. Supreme Court Courtin available at OTRE EP Jerry Goldman & Kent E. Portney 27 N . L. R factor that could influence their decision making but are influence their decision making factor that could Lyman Johnson et al., NOTRE DAME JOURNAL OF TS See R but see S ’ e’s Gender Affect the Sentencin g Studying gender without examining the individual experiences of experiences the individual gender without examining Studying 54. Maya Sen, 52. 53. Alternatively, this may be attributable to “gender consciousness.” Gender con- 51. judges are more empathetic or nur- Contrary to the misconception that women OMEN W (1999); ing on a deliberative enterprise must be willing to consider seriously opposing viewpoints and to incorporate those viewpoints into their worldview.”). Judicial System, Criminal Sanction: Results from Multimedia Experiments in Criminal Sentencin Criminal Sanction: Results from Multimedia Experiments the Annual Meeting of the American Political Science Association, August 28-31, 1997, the Annual Meeting of the American Political Washington, D.C., female armed robbery defendants; however, (finding female judges are more lenient on effects on other cases studied). there were no statistically significant gender 1971-2010 involving securities law issues revealed no discernible gender impact though 1971-2010 involving securities law issues revealed with female-integrated panels, sug- unanimous verdicts were reached more frequently in the deliberation process). gesting that female Justices induce collaboration sciousness, as a cognitive framework or schema, influences the way that people “see” the world. For instance, those who strongly identify as feminists (or anti-feminists) seem to be thinking in gender-schematic ways. B the Jud turing, they “are somewhat harsher (i.e., more likely to incarcerate and impose longer turing, they “are somewhat harsher (i.e., more sentences) . . . .” Hebert, Darrell Steffensmeier & Chris 362 sentencing criminal such as subjects neutral \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 10 2-MAY-14 7:29 be shared to affect the decision making of others. be shared to affect the decision making experience gender discrimination personally, they lack the essential discrimination personally, they experience gender experiential of nevertheless capable biologically more suggests, that women are as antiquated scholarship in perceivably likely to decide cases more favorably empathetic or more that matters. issues, but rather, it is experience traditional women’s from someone who Instead, learning about gender discrimination empathetically, may lead him experienced it, assuming the male listens his decision making as if he to draw upon that experience to inform had experienced it himself. ther supports this assertion and highlights the importance of experien- the importance highlights and this assertion supports ther gender. than factors, rather tial as a compartmentalized Women, way crime in the same securities law or not affected by group, are gender discrimination. experience women commonly because it commands problematic maker is inherently each decision decision making. alone influences that gender the conclusion Once coupled with an is broadened beyond gender, the inquiry’s focus in the legal pro- the history of gender discrimination understanding of and judicial that the correlation between gender fession, it is apparent women, as part gender discrimination cases is that decision making in to have exper- are more likely than men of their varied experiences, firsthand. ienced gender discrimination 34929-nde_28-1 Sheet No. 186 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 186 34929-nde_28-1 34929-nde_28-1 Sheet No. 187 Side A 05/07/2014 15:37:06 363 AKING AT THE M round Theory and the Supreme g ECISION (July 2, 2012), http://www.huf- D OST OURT P and not simply gender. C Then, Justices’ own experiences, As demonstrated in prior studies s to the U.S. Supreme Court s to the U.S. UDICIAL g 56 J 57 John Roberts’ Switch on Obamacare Sparks Fascina- UFFINGTON The Roberts Court therefore, provides The Roberts Court UPREME experience e to Justice: Social Back g 55 , H Findin g U.S. S U.S. ENDER AND From Jud G Existin g Sabrina Siddiqui, See . 1333, 1334–40 (2008). EV LIFE EXPERIENCE & JUDICIAL DECISION MAKING DECISION JUDICIAL & EXPERIENCE LIFE Applyin MPACT OF I A. HE Although “diversity” should not be constrained to traditional fac- to traditional not be constrained “diversity” should Although Any sort of statistical inquiry into the Supreme Court is inherently inquiry into the Supreme Court Any sort of statistical Akin to the studies of intermediate appellate panels, female U.S. Akin to the studies of intermediate Experience especially drives decision making when judges are Experience especially drives decision , 86 N.C. L. R 57. Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. 364, 374 (2009). 56. Some have argued that this occurred in the 2013 decision upholding the 55. Tracey E. George, III. T fingtonpost.com/2012/07/02/justice-roberts-obamacare-supreme-court-leaks_n_16448 64.html. tion with Supreme Court, Possible Leaks Affordable Care Act. Court 2014] \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 11 2-MAY-14 7:29 tors like race and gender, it is true that in this sense, the Roberts Court sense, the Roberts is true that in this and gender, it tors like race Ameri- two Italian an African American, diverse ever, with is the most and Justice), non-native English-speaking Latina (and first cans, its first serving.three women now to the bench. They each have varied paths Justice Kagan’s O’Connor’s departure and before Following Justice prior federal serving Supreme Court justices had appointment, all experience. appellate judicial an unprecedented opportunity for examination of the effects of both opportunity for examination of the an unprecedented traditional diversity—based on race, gender, religion—and experiential decision making. diversity on judicial few opinions ren- its small number of Justices and problematic given dered. results point- federal appellate courts skews Similarly, studying of gender without examining experience.ing to the category Existing significant the courts of appeals produce statistically studies focusing on the Supreme Court provides an ele- results; however, an examination of studies: more is known about each ment lacking in the courts of appeals Justice’s individual experiences. a smaller sample size, it becomes With and decision makers.practical to examine individual cases This facili- tates pointing more clearly to whether informed by race, gender, socioeconomic, or prior judicial whether informed by race, gender, distinct role in decision making. experience, play an important and come to bear in applying legal Similarly, a Justice’s own experiences such as whether a thirteen- standards involving subjective elements, by school officials as an invasion year-old girl perceived her strip search subjective and reasonable societal of privacy (determined by “both expectations of personal privacy”). of the federal courts of appeal, decisions dealing with gender discrimi- of the federal courts of appeal, decisions regardless of ideology, per- nation provide another example where, making. sonal experiences inform judicial decision their experiences to inform their Supreme Court Justices also share male colleagues’ decision making.Justice Rehnquist provided just one deciding cases without a clear doctrinal background or when political deciding cases without a clear doctrinal ideology does not provide a default. 34929-nde_28-1 Sheet No. 187 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 187 34929-nde_28-1 34929-nde_28-1 Sheet No. 187 Side B 05/07/2014 15:37:06 R R and Yet Duren 59 [Vol. 28 (July 11, IMES finding certain Justice Ginsburg , N.Y. T 64 , 61 azine an g g Alone: Reflections on the Impor- Ma g , in g , http://www.oyez.org/cases/1970- holding that the Family Med- holding Jud YEZ note 2. 60 , ETHICS & PUBLIC POLICY , O supra 441, 443 (2010). LAW, ENDER Instead, critics should remember that Jus- Instead, critics should remember that and even mocked then-litigator Ruth Bader then-litigator even mocked and 63 . & G 58 OL , P The Place of Women on the Court DUREN V. MISSOURI note 58. Demonstrably, the ability for gendered enlightenment Demonstrably, the Like the research on federal appellate judges suggests, Like the research on federal appellate supra 62 65 Mississippi University for Women v. Ho NOTRE DAME JOURNAL OF , where Ruth Bader Ginsburg challenged a law making jury service for women , where Ruth Bader Ginsburg challenged a law Id. Id. Similarly, Justice Burger increased his support from thirty-two Similarly, Justice Burger increased workers.women are Rehnquist explained, “[W]hen Chief Justice 66 Justice O’Connor’s impact on gender discrimination cases became Justice O’Connor’s impact on gender 64. 458 U.S. 718 (1982). 65. Karen O’Connor & Alixandra B. Yanus, 62. 63. For a recent example, see Stiehm, 59. oral argument (at 24:58) for Justice Rehnquist’s remark was made during 60. 538 U.S. 721 (2003). 61. Bazelon, 66. 58. Emily Bazelon, tance of Women on the Court 2009), http://www.nytimes.com/2009/07/12/magazine/12ginsburg-t.html. v. Missouri service was unnecessary to important voluntary, arguing it sends a message that women’s government functions. 1979/1978/1978_77_6067 (oral argument recording and transcript) (last visited Apr. 6, 1979/1978/1978_77_6067 (oral argument recording 2014). 364 impact. external of this example “sex discrimination said He once weight” carry little claims \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 12 2-MAY-14 7:29 to fifty percent, Justice Stevens from fifty-seven to eighty-three percent, to fifty percent, Justice Stevens from Justice O’Connor had a compelling impact on her colleagues.Justice O’Connor had a compelling After Justice Rehnquist increased his sup- Justice O’Connor joined the Court, from twenty-five to fifty per- port for gender discrimination claimants cent. does not discriminate among sexes.does not discriminate factors Because these experiential is surprising, it is when a Supreme Court decision are often overlooked, abandonment of of allegiance to a political party or attributed to a lack a mode of interpretation. tices are people with unique experiences that have shaped their tices are people with unique experiences worldviews. beginning with her majority apparent upon her arrival at the Court, opinion in Ginsburg at the end of her oral argument before the Court: “You won’t the Court: before argument her oral end of at the Ginsburg new dollar, right?” Anthony on the putting Susan B. settle for male and men are not, for the domestic sphere, stereotyped as responsible seem less valuable as employees.” that makes women ical Leave Act is a valid abrogation of state sovereign immunity, justified immunity, of state sovereign Act is a valid abrogation ical Leave of female discrimination of persistent unconstitutional by a history types of single-sex admissions policies violated the Fourteenth Amend- types of single-sex admissions policies ment’s Equal Protection Clause. on precedent, this is a decision Based Potter Stewart, would probably that Justice O’Connor’s predecessor, not have cast. reflected on whether the presence of female colleagues shaped Rehn- the presence of female colleagues reflected on whether and his I would attribute it to his court experience quist’s views: “I think I think the . . When his daughter Janet was divorced, life experience . . a father figure to of responsibility to be kind of chief felt some kind those girls. that he might not became more sensitive to things So he have noticed.” later as Chief Justice, he wrote the six to three majority opinion in three majority opinion wrote the six to Justice, he later as Chief v. Hibbs of Human Resources Nevada Dep’t 34929-nde_28-1 Sheet No. 187 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 187 34929-nde_28-1 34929-nde_28-1 Sheet No. 188 Side A 05/07/2014 15:37:06 . to 365 she NDEP ,I 71 At first 68 unrelated Susan W. Johnson & Given the statisti- Given 67 , http://www.cqpress.com/ But see Given her experiences in 297, 308 (2010) (O’Connor voted 74 further exhibits this. Despite 70 Behavior of Justices on Two North American EMINISM she is a strong advocate for feder- g 72 Sandra Day O’Connor Female Justices, Feminism, and the Politics of Judicial J.L. & F ALE , 21 Y . J. 265, 270 (2009) (O’Connor and Ginsburg’s agreement in . J. 265, 270 (2009) (O’Connor and Ginsburg’s Does Rape Violate the Commerce Clause of the Constitution? YS e Gender and the Votin g . S Rosalind Dixon, Jud United States v. Morrison UST LIFE EXPERIENCE & JUDICIAL DECISION MAKING DECISION JUDICIAL & EXPERIENCE LIFE Gonzales v. Raich, 545 U.S. 1 (2005) (O’Connor, J., dissenting) (involving , 30 J United States v. Lopez, 514 U.S. 549 (1995) (finding federal law regulating at 444. Throughout her tenure, Justice O’Connor engaged in robust Throughout her tenure, Justice O’Connor This underscores the fact that a woman’s impact is not plainly the fact that a woman’s impact is not This underscores See Id. See also Id. Id. 73 See also 69 In both the Supreme Court and lower courts, the statistical effect and lower courts, Supreme Court In both the 73. Specifically, the majority held violence against women was not an interstate 74. 70. majority, thereby departing from 529 U.S. 598 (2000) (O’Connor joined the 71. Wendy McElroy, 69. 72. CQ Supreme Court Collection, 67. 68. . (Oct. 1, 2000), http://www.independent.org/newsroom/article.asp?id=12. NST Supreme Courts I Donald R. Songer, the California Compassionate Use Act which provided for a medicinal exception for the for plaintiffs in Title VII gender discrimination cases eighty-nine percent of the time; for plaintiffs in Title VII gender discrimination of the time). Ginsburg voted for plaintiffs ninety-two percent guns near schools was not tied to commerce and interfered with states’ traditional police power). context/SupremeCourt/oconnor_bio.htm (last visited Sept. 29, 2013). context/SupremeCourt/oconnor_bio.htm (last activity nor economic in nature; therefore, it was out of the scope of the congressional power under the Commerce Clause. Appointment: A Re-Examination gender discrimination cases did not translate to other areas.gender discrimination cases did not translate In civil liberties, criminal, than Ginsburg and the average male and torts cases, O’Connor was more conservative than her male colleagues in equality cases. justice, while she was slightly more liberal male in all four categories). Ginsburg was more liberal than the average Ginsburg, who joined the dissent). 2014] percent. to ninety sixty-nine from White and Justice \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 13 2-MAY-14 7:29 judicial scrutiny of congressional authority. based on her sex or gender, but rather on the type of cases understood gender, but rather on the type of based on her sex or experience.based on personal to vote with Justice O’Connor’s decision the majority in alism. experiences, the prohibition of In her view, informed by her the states under their police violence against women remains with power. her “strong track record of ruling in favor of ‘women’s rights,’”record of ruling in favor of ‘women’s her “strong track cal effect on Justices of all political leanings, one can infer that a infer that one can leanings, of all political Justices on cal effect so even more making decision a colleague’s affects presence female’s than ideology. dis- dealing with gender holds true when presence only of a female’s cases.crimination O’Connor Ginsburg and Justices For instance, the decisions during of the Court’s only fifty-two percent agreed in together on the bench (1993–2005).twelve years they spent glance, this might indicate that ideology weighs more heavily than gen- indicate that ideology weighs more glance, this might der or experience. agreed more However, in certain cases, the Justices discrimination united in ninety percent of gender frequently; they were cases. voted against the civil damages provision of the Violence Against civil damages provision of the voted against the (VAWA).Act Women should If gender alone matters then O’Connor of upholding the Act.have voted in favor O’Connor However, Justice was voting based on personal experience—an experience gender. general, state senator, and appel- As a former assistant attorney late judge for the State of Arizona, 34929-nde_28-1 Sheet No. 188 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 188 34929-nde_28-1 34929-nde_28-1 Sheet No. 188 Side B 05/07/2014 15:37:06 R R [Vol. 28 where the Court found 76 ETHICS & PUBLIC POLICY Crawford v. Metro. Gov. of Nashville, 555 75 LAW, See note 65, at 444. supra note 58. supra Ledbetter v. Goodyear Tire & Rubber Co. Ledbetter v. Goodyear Tire & Rubber Gender Discrimination Cases at the U.S. Supreme Court: Gender Discrimination Cases at the U.S. Justice Ginsburg’s disappointment in her male colleagues Justice Ginsburg’s disappointment 78 NOTRE DAME JOURNAL OF Ledbetter v. Goodyear Tire & Rubber Co., B. Statistically, there was a ninety percent probability that Justices Statistically, there was a ninety percent 77 The experiences of Justice O’Connor greatly affected the Supreme The experiences of Justice O’Connor “Diversity” therefore, is not constrained to uniqueness in a racial, constrained to uniqueness therefore, is not “Diversity” Yes, women bring a different life experience to the table.Yes, women bring All of the conference better.our differences make I’m a woman, That up in I’m Jewish, that’s part of it, that I grew that’s part of it, that I went to summer camp in the Adirondacks, Brooklyn, N.Y., and part of me. all these things are 76. 550 U.S. 618 (2007).the Court decided other cases that In this time period 77. The Justice O’Connor departure effect suggests there is no similar long term 78. O’Connor & Yanus, 75. Bazelon, There is no formula. shape indi- Varied experiences in the aggregate factually involved gender discrimination. provision of Title VII protects employees U.S. 271 (2009) (holding that an anti-retaliation who merely cooperate with internal investigation rather than complain on their own); AT&T Corp. v. Hulteen, 556 U.S. 701 (2009) (discussing pregnancy discrimination and the calculation of pension benefits). socializing effect on male Supreme Court Justices as there had been at the courts of appeal. use of marijuana; Justice O’Connor focused on the distinction between commercial activi- use of marijuana; Justice O’Connor focused on ties at the local and national level). vidual decision making. less prominent, Some factors may be more or judges and cases. take precedence differs among but which factors vocalized. factors are ever present yet seldom These experiential models of decision making—whetherAlthough traditional one is an originalist or living constitutionalist—are voting often used to predict way to life experiences.behavior, these models sometimes give Gender life experience and worldview. is only one factor that shapes a judge’s Court’s jurisprudence on gender discrimination. Following her depar- unchanged, but Justice Ginsburg ture, the liberal/conservative split was became the lone female. effect was noticeable, particu- The resulting larly in 366 and state autonomy favored she state government, Arizona the it even when jurisprudence, in her consistent remarkably remained against VAWA. voting meant work and prior socioeconomic upbringing or gender sense; religious, jurispru- O’Connor’s to shape Justice experiences intersect or personal a whole.dence as matters. Intersectionality impos- this reason, it is For decision making.factor solely determines that any one sible to claim As said, Justice Ginsburg has \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 14 2-MAY-14 7:29 O’Connor and Ginsburg would have ruled together in favor of the O’Connor and Ginsburg would have plaintiffs. was clear. that Justice O’Connor would She has repeatedly commented against allegations of workplace discrimination in a five to four deci- against allegations of workplace discrimination sion. 34929-nde_28-1 Sheet No. 188 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 188 34929-nde_28-1 34929-nde_28-1 Sheet No. 189 Side A 05/07/2014 15:37:06 R 367 , N.Y. g , http:// YEZ , O (Oct. 5, 2009), Ruth Bader Gins- Second, she Of those six Upon gradua- 88 86 ODAY 83 is an example where , USA T (June 29, 2012), http://topics. Ledbetter IMES where she argued six landmark , http://www.biography.com/people/ruth- so Justice Ginsburg worked in legal so Justice Ginsburg , N.Y. T 85 g 84 note 80. IOGRAPHY , http://www.oyez.org/justices/ruth_bader_ginsburg, B : Court Needs Another Woman YEZ g , Despite a recommendation from the Dean of Despite a recommendation supra g , , O g g 82 The law school’s dean asked the women of the The law school’s presented a scenario not unfamiliar to Justice presented a scenario Ginsbur 80 Rejected as a Clerk, Chosen as a Justice: Ruth Joan Bader Ginsbur Rejected as a Clerk, Chosen as a Justice: Ruth Joan LIFE EXPERIENCE & JUDICIAL DECISION MAKING DECISION JUDICIAL & EXPERIENCE LIFE 79 Ledbetter LEDBETTER v. GOODYEAR TIRE AND RUBBER COMPANY Yet, Justice Ginsburg excelled academically and graduated Yet, Justice Ginsburg 81 note 80. Ruth Bader Ginsbur Ruth Bader Ginsbur Ruth Bader Ginsbur Id. Id. Times Topics: Ruth Bader Ginsbur not only informed her decision making but also prepared her to not only informed her decision making 87 , June 15, 1993, at A1. the recommendation, while a prior Dean Albert Sacks wrote The petitioner, Lilly Ledbetter sued her employer, Goodyear Tire Goodyear employer, sued her Lilly Ledbetter petitioner, The Justice Ginsburg’s background as a feminist legal activist who Justice Ginsburg’s background as supra 86. 80. 85. 87. In addition to her firsthand experience, Ginsburg’s work as a feminist legal 88. Ironically, the opinion announcement transcript of her dissent identifies her as 81. 82. 83. Neil A. Lewis, 79. Joan Biskupic, 84. , . Ginsburg.” g IMES Mr http://usatoday30.usatoday.com/news/washington/judicial/2009-05-05-ruthginsburg_N. at the National Constitution Center, Phila., htm; Justice Ruth Bader Ginsburg, Address Pa. (Sept. 6, 2013) (video available at https://vimeo.com/74230799). nytimes.com/top/reference/timestopics/people/g/ruth_bader_ginsburg/index.html. T (last visited Apr. 6, 2014). bader-ginsburg-9312041 (last visited Apr. 6, 2014). activist provided an in-depth understanding of this case and empathy for the plaintiff. “ dean, Erwin Griswold, contributed to the hostility previously referenced. dean, Erwin Griswold, contributed to the hostility bur 2014] the to favor decision ultimate Court’s the her, shifting sided with have complainant. \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 15 2-MAY-14 7:29 enlighten her colleagues. Justice Ginsburg took the sym- For starters, from the bench. bolic step of announcing her dissent under a disparate treatment theory of Title VII alleging it intentionally theory of Title VII treatment under a disparate signifi- by paying her the basis of gender against her on discriminated than her male counterparts.cantly less that Supreme Court held The one hun- file suit within because she did not was time-barred her claim though paycheck, even first discriminatory days from the dred eighty just before her of the disparity until decades later, she did not learn retirement. Ginsburg. by her male student, she was the subject of ridicule As a law classmates and professors—the Harvard Law School was environment at “extremely hostile.” at the top of her class. class “what it felt like to occupy places that could have gone to deserv- like to occupy places that could have class “what it felt ing men.” Harvard Law School, Justice Felix Frankfurter declined to interview her Justice Felix Frankfurter declined Harvard Law School, “just wasn’t ready to hire a woman.” for a clerkship; he academia and became involved with the American Civil Liberties involved with the American academia and became Union’s Women’s Rights Project, Supreme Court. cases on gender equality before the cases, Justice Ginsburg won five, paving the way for constitutional pro- cases, Justice Ginsburg won five, paving tections against gender discrimination. gave her a unique understanding helped establish women’s legal rights of the realities of gender discrimination. the law does not fit those realities.Justice Ginsburg’s firsthand experi- ence tion, no law firm offered her a job tion, no law firm offered 34929-nde_28-1 Sheet No. 189 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 189 34929-nde_28-1 34929-nde_28-1 Sheet No. 189 Side B 05/07/2014 15:37:06 R [Vol. 28 note 88. supra , “[T]hat situation for a Subjective g 91 , the court decided g 90 ETHICS & PUBLIC POLICY LAW, Safford Unified School District Safford Unified School 92 Similarly, to weigh the nature of the governmental Similarly, to weigh the nature of the In highlighting those realities, she addressed the fact: the she addressed realities, those In highlighting employment practices and that world is what the court what the world is and that practices employment 93 Analysis: 89 (emphasis added). NOTRE DAME JOURNAL OF The Role of Experiential Factors in Cases Callin The Role of Experiential Id. LEDBETTER v. GOODYEAR TIRE AND RUBBER COMPANY Id. Safford Unified School District #1 v. Reddin Safford Unified School District #1 v. real world Instead, the majority’s holding would force plaintiffs, even before holding would force plaintiffs, Instead, the majority’s doctrinal authority, such as An examination of cases lacking clear In An employee like Ledbetter trying to succeed in a male domi- trying to succeed like Ledbetter An employee she was hired, only by men before in a job filled nated workplace making waves. anxious to avoid maybe [sic] understandably Pay impact is signifi- and swells an [sic] that recurs discrimination communi- adverse actions promptly from discrete cantly different as discriminatory. cated and easy to identify C. 93. Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. 364, 370 (2009) (“[A] school 90. 91. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 658 n.9 (2007) (Gins- 92. 89. search ‘will be permissible in its scope when the measures adopted are reasonably related burg, J., dissenting). www.oyez.org/cases/2000-2009/2006/2006_05_1074 (follow “Ledbetter v. Goodyear Tire www.oyez.org/cases/2000-2009/2006/2006_05_1074 hyperlink; then follow “Full Transcript and Rubber Company - Opinion Announcement” Text” hyperlink) (last visited Apr. 6, 2014). 368 to was meant VII “Title in reflecting, experiences upon personal drew govern today.” ignores \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 16 2-MAY-14 7:29 the pattern of discrimination fully developed, to sue too soon to prevail, fully developed, to sue too the pattern of discrimination is large off as time barred once the pay differential “while cutting them them to mount a winnable case.” enough to enable interest, the Court needed to put itself in the place of school adminis- interest, the Court needed to put itself those commanding analysis by applying a subjective standard, even fur- those commanding analysis by applying of an individual’s experiences, and ther demonstrates that the totality making.not merely gender, shapes judicial decision The ability to draw inform decision-making requires upon individualized experiences to most affected by the court’s deci- the ability to empathize with those sions.dealing with subjective standards, This is especially so when place themselves in the shoes of the which necessarily require judges to litigant. context, one must deter- For example, in the right-to-privacy an actual subjective expectation mine whether the litigant herself had of privacy. middle-school student violated the whether the strip search of a female Fourth Amendment. Court first had to examine the To do so, the governmental interest, and deter- intrusiveness of the search, weigh the a reasonable means of address- mine whether the government adopted ing its concern. of the search required an Assessing the intrusiveness and how others in her place understanding of the student’s experience would have felt. cannot be what Congress intended when Title VII outlawed discrimina- intended when Title VII outlawed cannot be what Congress origin in our race, color, religion, sex, or national tion on the basis of nation’s workplaces.” 34929-nde_28-1 Sheet No. 189 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 189 34929-nde_28-1 34929-nde_28-1 Sheet No. 190 Side A 05/07/2014 15:37:06 R R . EV 369 L. R ARDOZO Justice Gins- In disbelief, http://www.oyez. 99 96 , Jan. 24, 2006). , 2009 C 98 note 95, at 11. Later, Justice Breyer available at ERVICE S supra of the Senate Judiciary Subject: The 100 g EWS . N Similarly, Justice Alito, in sug- Similarly, Justice Meetin ED 95 and the Rule of Law ,F g in g Empathetic Jud note 94, at 138 (quoting And with backup from Justice Roberts, “You are saying And with backup supra LIFE EXPERIENCE & JUDICIAL DECISION MAKING DECISION JUDICIAL & EXPERIENCE LIFE 97 at 9. Previously, Justice Alito stated, “When I have cases involving children, I Previously, Justice Alito stated, “When I have at 8. at 12. During oral argument, the Justices examined the difficult examined the Justices argument, oral During Id. Id. Id. Id. 133, 143 (2009). 94 Because this case was not met with a strong ideological split among not met with a strong ideological Because this case was OVO 100. 97. Transcript of Safford Unified Oral Argument, 98. 99. 94. Susan A. Bandes, 95. Wright on Behalf of the Petitioners Transcript of Oral Argument of Matthew W. 96. N E D Nomination of Samuel Alito to the Supreme Court can’t help but think of my own children. I get a case about discrimination, I have When suffered discrimination because of their to think about people in my own family who ethnic background or because of religion or because of gender, and I do take that into account.” Bandes, to the objectives of the search and not excessively intrusive in light of the age and sex of to the objectives of the search and not excessively the student and the nature of the infraction.’”) (citation omitted). 557 U.S. 364 at 370 (2009) (No. 08-479) at 6, Safford Unified Sch. Dist. #1 v. Redding, Argument], [hereinafter Transcript of Stafford Unified Oral 2014] trators. \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 17 2-MAY-14 7:29 org/cases/2000-2009/2008/2008_08_479. the Justices, an argument can be made that the outcome would have can be made that the outcome the Justices, an argument a female on the regardless of the presence of remained the same bench. transcript provides insight into Nevertheless, the oral argument to the decision making process as the individual Justices’ contributions a whole. was the first to address the sub- For instance, Justice Ginsburg girl.jective experience of Redding as a young Ginsburg empathized by student and asking, “What was the placing herself in the shoes of this situation?” reason for . . . putting her in that humiliating choices facing an administrator who is confronted with a tip that a stu- tip that a with a who is confronted an administrator facing choices or the school others, herself, to harmful in conduct is engaging dent environment. in the Justices engaging reveals many of The transcript decision at stake in their what is dialogue to understand empathetic making. of herself in the shoes Ginsburg put For instance, Justice to see could follow up “But an official and asked: administrators this child—whetherwhether she said. a basis for what there is But asked at all.” there were no questions if you have reasonable suspicion that it’s in the underwear, you suspicion that it’s in the if you have reasonable searching the pack or the pockets.shouldn’t even bother You should underwear.go straight to the That can’t be right.” gesting a problem-solving approach of less invasive alternatives, said approach of less invasive gesting a problem-solving .” keep records on its students . . . “the school could recalled, “[W]hen I was 8 or 10 or 12 years old, you know, we did take recalled, “[W]hen I was 8 or 10 or for gym” and “in my experience, our clothes off once a day, we changed burg’s inquiry put her male colleagues on notice, prompting Justice burg’s inquiry put her male colleagues . . . [t]here seems no reason Breyer to add, “[H]ere she is embarrassed have her instead “[p]ut on [her] for that” because the school could day.gym clothes . . . she does that every [There are] just such obvious naked.” alternatives to having her be really Justice Scalia scoffed, “[Y]ou reasonably suspect the student has drugs. “[Y]ou reasonably suspect the student Justice Scalia scoffed, else.You’ve searched everywhere must be in her By God, the drugs underpants.” 34929-nde_28-1 Sheet No. 190 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 190 34929-nde_28-1 34929-nde_28-1 Sheet No. 190 Side B 05/07/2014 15:37:06 R R R 110 The [Vol. 28 101 Under this In contrast, 109 While the male 108 105 Rather, a thirteen-year- Rather, a 102 ETHICS & PUBLIC POLICY LAW, 104 note 65, at 448. Justice Ginsburg quickly redirected Justice quickly redirected Justice Ginsburg supra 103 note 58. note 94, at 144. supra supra 107 Justice Ginsburg was quick to cure any lack of understand- Justice Ginsburg was at 387 (Thomas, J., dissenting). at 382–83 J., dissenting). (Thomas, at 377. at 25. . 106 NOTRE DAME JOURNAL OF Id. Id. Id. Id. Id Id. Ultimately, this inquiry prompted the Court to find that “[t]he Ultimately, this inquiry prompted This demonstrates how Justice Ginsburg’s presence as the lone how Justice Ginsburg’s presence This demonstrates The Court’s resulting opinion similarly reflected the use of empa- opinion similarly reflected the The Court’s resulting Savana’s subjective expectation of privacy against such a search is Savana’s subjective expectation of privacy frightening, and inherent in her account of it as embarrassing, humiliating. (required by The reasonableness of her expectation indicated by the consistent the Fourth Amendment standard) is searched, whose ado- experiences of other young people similarly patent intrusiveness of the lescent vulnerability intensifies the exposure. 110. 109. 106. 107. Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. 364, 374–75 (2009) (citation 108. 105. Bazelon, 103. 104. O’Connor & Yanus, 102. Bandes, 101. omitted) (although the court found that the defendant’s conduct was unconstitutional, it was entitled to qualified immunity from liability). 370 underwear.” in [their] things stick sometimes people did too, \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 18 2-MAY-14 7:29 meaning of such a search [for evidence of wrongdoing], and the degra- meaning of such a search [for evidence place a search that intrusive in a dation its subject may reasonably feel, suspicions.” category . . . demanding its own specific female on the court prompted her male colleagues to think of any dif- prompted her male colleagues to female on the court boy in a thirteen-year-old girl and a thirteen-year-old ferences between it is to be seen undressed. terms of how humiliating ing by sharing her own experiences. ing by sharing her making.thy as a tool in the Justices’ decision It reads: Breyer’s conception to the “traumatic effect that an adolescent girl to the “traumatic effect that an Breyer’s conception underclothes in when forced to strip down to her would experience front of school administrators.” old girl was “forced to strip to her underwear and shake out her bra and and shake out her to her underwear “forced to strip old girl was her of concealing officials who suspected in front of school underpants ibuprofen.” prescription Justices “first thought of their own reaction” reflecting on grade school of their own reaction” reflecting Justices “first thought gym, what’s the “You change your clothes in the gym class and thinking, big deal?” Justice Thomas’s dissent avoids empathetic inquiry of the search sub- Justice Thomas’s dissent avoids empathetic focusing instead on the “deep ject, which leads to a harsh conclusion, of public schools.” intrusion into the administration searched in a location where the rule, “[b]ecause the school officials search was reasonable in scope” pills could have been hidden, the importance of Ginsburg’s role is further shown when, in response to response when, in shown is further role Ginsburg’s of importance own exper- upon his reflecting (undoubtedly comment Breyer’s Justice search at out that the Ginsburg pointed a young boy), Justice iences as room suit-up. case was no locker issue in this 34929-nde_28-1 Sheet No. 190 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 190 34929-nde_28-1 34929-nde_28-1 Sheet No. 191 Side A 05/07/2014 15:37:06 R 111 371 , 34 . 225 (1998). USTICE , in which no , in J OMMENT . C HIEF C ONST , 15 C Safford Unified Safford OLE OF THE R Where, But for the Grace of God, Goes He? The Search for EUTRAL N What changed?even this provides Perhaps Videri Quam Esse: The Role of Empathy in Judicial Discourse note 79 (“One of the hallmarks of the court is collegiality. You 113 ENDER Eric L. Muller, supra G Today, Thomas is viewed as one of the court’s least as one of the court’s is viewed Today, Thomas . 121, 122 (2010) (footnote omitted). LIFE EXPERIENCE & JUDICIAL DECISION MAKING DECISION JUDICIAL & EXPERIENCE LIFE HE at 389 (Thomas, J., dissenting). Justice Thomas’s dissent Nothing in EV 112 enerally g . R See See id. Chief Justices Taft and Marshall both placed great value on Chief Justices Taft and Marshall both IV. T SYCHOL 114 Another way to think about the role of women judges is to com- about the role of women judges Another way to think by gender variance; no The role of Chief Justice is untouched leaders, have desired to inspire Many Chief Justices, as institutional 114. Ginsburg, 112. Catherine Crowe, 113. 111. could not do the job that the Constitution gives to us if you didn’t, to use one of Justice Scalia’s favorite expressions, ‘Get over it.’”). Empathy in the Criminal Jurisprudence of Clarence Thomas indicates a search of a body cavity would be unreasonable, so long as pills could be hid- indicates a search of a body cavity would be den there. L. & P empathetic inquiry entered into the subjective expectation of privacy expectation the subjective into entered inquiry empathetic Clarence nominee, note that as a judicial it is interesting to analysis, be that a justice should Committee told the Senate Judiciary Thomas what the are affected by of the people who in the shoes able to “walk Court does.” 2014] have felt. might the search subject of the how violated of regardless in dissent Thomas’s of Justice In light \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 19 2-MAY-14 7:29 producing unanimous opinions. for instance, wrote the opin- Marshall, his opinions to the other Justices ions of the Court himself, submitted disagreement so that it may be for consideration, and reconciled any pare them to the non-gender-related role of the Chief Justice of the non-gender-related role of the Chief pare them to the Court.United States Supreme Justice, serving It is true that the Chief motivated by his in an administrative capacity, is both as a justice and Court.need to lead the Court, the Chief However, in so leading the informed by his own experiences.Justice uses his discretion, There- duties, it nev- role is in part based on administrative fore, although this how a useful comparison in demonstrating ertheless provides making regardless of gender.experiences impact judicial decision The Chief Justice, like any other Justice—whether con- male, female, liberal, servative—views panel his or her “voice” as a unique contribution to the might similarly share her unique in the same way each female Justice making. experiences to inform others’ decision female has ever occupied the position. Arguing that women judges as saying that a male, desirous of have a “woman’s voice” is as strange on the Court, speaks with a “man’s achieving unanimity or collegiality voice.” each Chief Justice has Instead, as the following demonstrates, role based on his own discretion historically carried out his leadership much in the same way that a and influenced by his own experiences, on experiential factors. woman judge, or any judge, votes based collegiality, homogeneity, and legitimacy. It allows the court to func- tion. empathetic Justices. empathetic another example where experience has informed legal reasoning. where experience has informed legal another example 34929-nde_28-1 Sheet No. 191 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 191 34929-nde_28-1 34929-nde_28-1 Sheet No. 191 Side B 05/07/2014 15:37:06 , . HE Id. F. 116 117 ASH , T OSTER Spe- ENRY , W [Vol. 28 TABILITY 123 : S . 1267, 1283 ISSENT IN THE EV OARD These goals , D B 915 (1939); F 119 . L. R ABOR ACKSON INN L 119 (1998). AR collegial than the Rehnquist E. J IOGRAPHY I at ch. 2 (1983); H W OURT , 85 M AR less Adkins v. Children’s Hospi- Adkins v. Children’s C : A B When John Roberts took W ERCIVAL Adkins v. Children’s Hosp., 261 U.S. Alito is on a Roll. An Eye Roll EAL AFT U.S. Supreme Court Justices? An Early Justice Alito’s Inexcusable Rudeness 122 ATIONAL g See D T ORLD ETHICS & PUBLIC POLICY N EW at 18. More recently, Justice Samuel Alito W HE N In the first four years of his tenure, years first four In the Id. , July–Aug. 2011, at 12–13. OWARD , T LAW, in the Taft Court H 115 g iality Amon TATE IN g S ONNER Garrett Epps, The Supreme Court Opinion as Institutional Practice: Dis- The Supreme Court Opinion as Institutional Practice: ILLIAM C Colle UDICATURE 21-22 (1969)). 226–27 (1949)). W EAN ETHINKING THE J note 8, at 116 (citing P see also , 95 J OLUNTARY , R MERICA V IMES OF supra A ALERIE T , HRONOLOGY USHMAN Taft’s concern for certainty in the law was not only for certainty in the law was not only Taft’s concern for C AND THE : A C ABOR IN IFE AND ONNOR , 118 at 116. (citing V at 13. The Roberts Court is actually slightly (citing Robert Post, L , L Yet as Chief Justice, Taft applied his experiences counter to Taft applied his experiences counter Yet as Chief Justice, ARRY NOTRE DAME JOURNAL OF Id. Id. Id. Id. Id. Id. OURT HE C USTICE 120 al Scholarship and Decisionmakin , T ULLES where—despite Jus- record of voting with the conservative a track g J The Court under Chief Justice Rehnquist’s leadership, was one of The Court under Chief Justice Rehnquist’s While Marshall is credited as developing the grand court we know as developing the is credited While Marshall D , June 25, 2013, at A2; 120. B 119. 121. 123. 122. David A. Yalof et al., 116. 117. 118. 115. O’C 121 , HEA OST RINGLE UPREME OCIAL P P S (2001)). far: “When methods of accommodation There is danger in taking this too were willing to sign on to unanimous opin- failed, however, the Justices of the Taft Court which they did not agree.ions that contained statements of the law with Correspondence votes were changed only under protest.” between the Justices shows that many of their at 118–119. is said to have “pursed his lips, rolled his eyes to the ceiling, and shook his head ‘no,’” as Justice Ginsburg read dissents in two cases; Alito’s gestures “brought gasps from more than one person in the audience.” Dana Milbank, sent, Le Court; twenty-two percent of constitutional-case opinions written during the first four years of the Roberts Court contain non-collegial rhetoric, compared to fourteen percent under the Rehnquist Court’s last four terms. 525 (1923) (Taft, C.J., dissenting). Assessment of the Roberts Court R S 372 of all.” the opinion as “delivered agreement, level of Court’s the attributed Jefferson Thomas However, but to reach consensus, to modify opinions willingness not to Marshall’s on the other Justices. influence the Chief’s overwhelming rather to \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 20 2-MAY-14 7:29 tal his ideology, most notably in his dissent in his ideology, most a reputation as pro-employer—hetices and developing sided against laws. argued in favor of minimum wage business owners and the most fractured and divisive Courts. today, Chief Justice Taft also deserves recognition for uniformity and for uniformity deserves recognition Justice Taft also today, Chief collegiality. were Court’s opinions of the Taft Eighty-four percent unanimous. the need of people to plan their lives and business transactions around to plan their lives and business transactions the need of people legitimacy of the institution itself. it, but also for the there were no dissents and only one separate concurring opinion. concurring one separate and only dissents were no there over the reins in September of 2005, he declared that one of his main over the reins in September of 2005, atmosphere” to the Court. goals was to bring a more “collegial likely came from his experiences while serving as the United States Pres- experiences while serving as the United likely came from his of the National experience as co-chairman ident and in his subsequent War Labor Board. lawyers As one of the most prominent conservative member of the widely expected to be a pro-employer of the day, he was Board. cifically, he sought to add both “‘credibility and stability’ to the law by 34929-nde_28-1 Sheet No. 191 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 191 34929-nde_28-1 34929-nde_28-1 Sheet No. 192 Side A 05/07/2014 15:37:06 R R 373 Individual g . Yet not all of his 128 (June 28, 2012), http:// 127 (April 2, 2012, 3:55 PM), ALON COM ,S CNN. (June 30, 2012), http://sblog.s3. ” , President Obama: Overturnin LOG By breaking away from the more away from By breaking or that it was an attempt to demon- or that it was an 126 129 (June 29, 2012), http://www.tnr.com/blog/plank/ , SCOTUSB EPUBLIC R Chief Justice Roberts has been vocal in the past been vocal in the Roberts has Chief Justice Did John Roberts Switch his Vote? EW Welcome to the Roberts Court: How the Chief Justice Used Obamacare to Welcome to the Roberts Court: How the Chief Justice Adam Aigner-Treworgy, note 122, at 13. note 122, at 13. , N 125 LIFE EXPERIENCE & JUDICIAL DECISION MAKING DECISION JUDICIAL & EXPERIENCE LIFE note 8, at 121. supra supra see also This is because unanimous opinions are more difficult to more difficult are opinions unanimous is because This Even still, former Justice O’Conner has noted the virtues of dissenting Even still, former Justice O’Conner has noted ; supra Id. 124 Id. Frequency in the Majority , (June 24, 2013), http://www.theatlantic.com/national/archive/2013/06/jus- Following the Affordable Care Act (ACA) decision, Chief Justice Care Act (ACA) decision, Following the Affordable “For bringing the Court back from the partisan abyss, Roberts “For bringing the Court back from but from all Americans who deserves praise not only from liberals 129. Paul Campos, 128. Yalof, There is value to dissent even if it does not eventually carry the day.There is value to dissent even if it does not eventually Dissenting to respond to criticisms, honing opinions can force the Justices in the majority serve to limit the holding of the the Court’s opinion . . . . Dissents also can and all those who must be majority opinion . . . and to alert future litigants, the Court’s opinion. governed by the law, of the precise scope of role in showing those members of Perhaps most important, the dissent plays a that their views, while they did the public who disagree with the Court’s opinion seriously. not prevail, were at least understood and taken 125. 126. Jeffrey Rosen, 127. 124. Yalof, ONNOR TLANTIC amazonaws.com/wp-content/uploads/2012/06/SB_frequency_OT11_final.pdf. www.salon.com/2012/06/28/did_john_roberts_switch_his_vote/. Some point to “warn- ings” made by the Obama administration. President Obama stated he was “confident that the Supreme Court [would] not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” http://whitehouse.blogs.cnn.com/2012/04/02/president-obama-overturning-individual- mandate-would-be-unprecedented-extraordinary-step/. opinions: O’C Mandate Would be “Unprecedented, Extraordinary Step Reveal His True Identity 104493/welcome-the-roberts-court-who-the-chief-justice-was-all-along#. tice-alitos-inexcusable-rudeness/277163/ (giving a firsthand account) tice-alitos-inexcusable-rudeness/277163/ (giving A 2014] wherever opinions in their agreement to find colleagues his new urging possible.” \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 21 2-MAY-14 7:29 Roberts received much criticism as well as admiration for joining the much criticism as well as admiration Roberts received liberal justices. move was an observers speculated that the Court sure to result nine justices from the political fallout attempt to “shield the [ACA]” from overturning overturn “while closely divided 5–4 divided closely “while overturn for the it harder make decisions institution that transcends as an impartial respect the court public to politics.” partisan about his desire to “place the bipartisan legitimacy of the Court above of the Court the bipartisan legitimacy desire to “place about his ideological agenda.” his own strate the Court’s legitimacy—that to the they merely apply the law facts, sans politics. One reporter declared, recent five to four ideologically-divided decisions, Chief Justice Rob- Chief Justice decisions, to four ideologically-divided recent five erts—like late Chief Justice John Marshall—would the rally his associate the institutional entity thereby strengthening members into a unified Court.legitimacy of the seemed to be Chief Justice Roberts himself ninety-three via unanimity by joining the majority striving for legitimacy during the October 2011 term. percent of the time colleagues have “signed on:” the Court’s unanimity rate has increased on:” the Court’s unanimity rate colleagues have “signed Chief Justice Roberts’s tenure. only slightly during 34929-nde_28-1 Sheet No. 192 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 192 34929-nde_28-1 34929-nde_28-1 Sheet No. 192 Side B 05/07/2014 15:37:06 R R R [Vol. 28 hty Cases g (June 28, 2012), NLINE Supreme Court Faces Cru- . O EV R L ACTORS ’ Supreme Court Faces Wei AT F , N ETHICS & PUBLIC POLICY LAW, Under this theory, a Justice who grew XPERIENTIAL 134 E (Sept. 29, 2012), http://www.nytimes.com/2012/09/ Why Roberts Did It THER IMES note 126 (explaining Marshall’s similar act of “judicial jujitsu” note 126 (explaining Marshall’s similar act of note 55, at 1336. note 126. V. O , N.Y. T supra , where he “refused to confront president Jefferson over a question For this reason, judicial decision making will never be For this reason, judicial supra ). supra 133 Rosen, 130 Chief Justice Roberts followed Chief Justice Marshall’s Chief Justice Roberts NOTRE DAME JOURNAL OF See acting by not simply acting as a “conservative” appointee. acting by not simply In 131 . 132 Scholars of social background theory argue “the actions of judges Scholars of social background theory Chief Justice Roberts exercised “political genius” by acting in a per- by acting in a “political genius” Roberts exercised Chief Justice believe that it’s important for the Court to stand for something to stand Court for the important that it’s believe the of legitimacy the bipartisan He placed . . . than politics. larger agenda. own ideological above his Court into his Seven years the Roberts Court finally became the Supreme Chief Justiceship, Court.” 134. George, 131. the healthcare ruling was seen as an Relatedly, Chief Justice Roberts’s vote on 132. 133. Charles Krauthammer, 130. Rosen, Marbury v. Madison http://www.nationalreview.com/articles/304332/why-roberts-did-it-charles- krauthammer#. in of executive privilege but laid the groundwork for expanding judicial power in the future”) attempt to “protect the authority of his court against charges of partisanship while accru- attempt to “protect the authority of his court ing a mountain of political capital in the process.” Adam Liptak, cial Cases in New Session 30/us/supreme-court-faces-crucial-cases-in-new-session.html?pagewanted=2&_r=0&smid= changed to fb-share&pagewanted=all (title subsequently and a New Dynamic 374 \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 22 2-MAY-14 7:29 can be best understood as a product of their demographic characteris- can be best understood as a product such that a shared attri- tics and personal and professional experiences “would affect subsequent bute,” including prior work experience, behavior in predictable ways.” lead, ceivably bipartisan manner, upholding the liberal-backed ACA while liberal-backed ACA upholding the bipartisan manner, ceivably in the power restricting congressional groundwork for laying the future. as it first Roberts’s vote was not as surprising this light, Chief Justice appeared. always “carry the is that political ideology will not The lesson making. reliant predictor of decision day” as the most While conservative[,] [Justice Roberts] is a constitutional “[j]urisprudentially, as uniquely is chief justice [sic] and sees himself [i]nstitutionally, he reputation, custodianship of the Court’s legitimacy, entrusted with the and stature.” predictable under all circumstances.predictable under Justice Rob- Speculatively, if Chief Republican presi- Associate Justices, appointed by a erts were one of the construction, a history of conservative constitutional dent and having conservative Justices.he may have voted to join the other Nevertheless, the multifaceted role.Chief Justice Roberts’s tenure demonstrates Just are two Chief Justices. as no two women are alike, neither up in socioeconomically disadvantaged circumstances might better up in socioeconomically disadvantaged in the same way a woman would understand the plight of the poor 34929-nde_28-1 Sheet No. 192 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 192 34929-nde_28-1 34929-nde_28-1 Sheet No. 193 Side A 05/07/2014 15:37:06 R 375 Is on g EWSMAX in g , N Yet he has Aside from United States v. 138 ee es in Capital Cases, 136 g e’s View of Jud g A Jud Catholic Jud Therefore, by extension, many extension, by Therefore, 135 . Id Scalia: Catholicism at Core of My Judicial Ethics Part VI. “The Judge Kozinski demonstrates this beautifully: note 112, at 121. John Garvey & Amy Coney Barrett, , May 15, 2009, at A21. Some well known Supreme Court Justices were, and Some well known Supreme Court supra LIFE EXPERIENCE & JUDICIAL DECISION MAKING DECISION JUDICIAL & EXPERIENCE LIFE IMES . 303 (1998) (arguing that while mere identification of a judge as Catho- 139 enerally infra, It is likely Justice Sotomayor will take these experiential fac- will take these experiential It is likely Justice Sotomayor EV g Id. See also N.Y. T See 137 . L. R Religion may also inform judicial decision making.Religion may also Scalia Justice While it is too early to know the impact Justice Sonia Sotomayor Justice impact know the early to it is too While ARQ 138. Kathleen Ganster, 137. Crowe, [T]here’s one kind of diversity that doesn’t exist: No truly poor people are [T]here’s one kind of diversity that doesn’t for that matter.appointed as federal judges, or as state judges Judges, regardless class of people who don’t live in of race, ethnicity or sex, are selected from the trailers or urban ghettos. of people who live in poverty The everyday problems that’s not how we and our friends are not close to our hearts and minds because live. 136. once gave a speech declaring, Prior to her nomination, Justice Sotomayor 139. 135. does not exist. But at least one judge argued such a judge S 81 M lic is not sufficient reason for recusal under federal law, the moral impossibility of enforc- ing capital punishment in such cases as sentencing, enforcing jury recommendations, and affirming are in fact reasons for not participating). Pineda-Moreno, 617 F. 3d 1120, 1123 (9th Cir. 2010) (J. Kozinski, dissenting): Pineda-Moreno, 617 F. 3d 1120, 1123 (9th Cir. own life experiences, the role of empathy is Thus, when impossible to draw upon one’s bolstered. of grounds, not least among them its panel’s breezy opinion is troubling on a number unselfconscious cultural elitism.” “‘Whether or inherent physiological or cultural differences,’ . . . born from experience gender and national origins may and will for jurists who are women and nonwhite, ‘our make a difference in our judging.’” She added, “I would hope that a wise Latina woman often than not reach a better conclusion with the richness of her experiences would more than a white male who hasn’t lived that life.” Charlie Savage, the Record, (Sept. 25, 2011), http://www.newsmax.com/InsideCover/scalia-catholicism-justice- court/2011/09/25/id/412199. 2014] discrimination. gender understand \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 23 2-MAY-14 7:29 are, deeply religious. today’s Supreme Court Justices Unlike the past, faith, at times explicitly stat- have spoken publicly about their religious ing in their opinions that “‘[c]ourts must recognize that the state is but tors into account in the same way that other women have considered in the same way that other women tors into account that past chief jus- of gender discrimination and their own experiences experiences in leaders, have drawn upon their own tices, as institutional of the court. organizing the goals that meaning is I apply have a fair meaning, and has stated, “The laws than it is differ- Catholic than it is for a Jew, any more no different for a a man, or a white man and a black.” ent for a woman and different experiential factors similarly affect judicial decision making. decision judicial affect factors similarly experiential different unique desire to use her has expressed a on the bench, she will have world-views. her colleagues’ to complement experiences also stated that while his judicial decisions are not based on religion, he his judicial decisions are not based also stated that while that was counter to the tenets of would not work for a judicial system Catholicism. “traditional” diversity factors, Justice Sotomayor has had a particularly Justice Sotomayor diversity factors, “traditional” bench. her tenure on the prior to diverse experience school, After law later at a Office and District Attorney’s in the Manhattan she worked Court for the being appointed to the U.S. District top law firm before Circuit Court of of New York and later to the Second Southern District Appeals. 34929-nde_28-1 Sheet No. 193 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 193 34929-nde_28-1 34929-nde_28-1 Sheet No. 193 Side B 05/07/2014 15:37:06 see 140 145 This [Vol. 28 142 (2007). EMOIR , SLATE (Dec. 11, : A M a case involving a a case involving ON 143 S , S ’ http://www.supremecourt.gov/ s Speech or Violence? g ETHICS & PUBLIC POLICY RANDFATHER inia v. Black available at G Y g LAW, , M Vir Moreover, “racial diversity . . . [may] Moreover, “racial 141 HOMAS : Are Cross-Burnin g T . 405, 410 (2000). EV Racial Diversity on the Bench: Beyond Role Models and Public Con- Racial Diversity on the Bench: Beyond Role Models LARENCE L. R C EE inia Burnin g —became frustrated with his colleagues’ misunderstand- Vir . & L 144 enerally at 411. g ASH 146 NOTRE DAME JOURNAL OF Id. See , 57 W Others have similarly argued that racial diversity on the bench is on the bench that racial diversity similarly argued Others have 145. Transcript of Oral Argument of Michael R. Dreeben at 22–23, Virginia v. 146. Virginia v. Black, 538 U.S. 343, 347, 363 (2003). 143. 538 U.S. 343 (2003). 144. African American Justice and its Justice Clarence Thomas is the Court’s only 142. 140. Use of Religious References in Judi- Sanja Zgonjanin, Quoting the Bible: The 141. Sherrilyn A. Ifill, Black, 538 U.S. 343 (2002) (No. 01-1107), 2002), http://www.slate.com/id/2075301/. Dahlia Lithwick, oral_arguments/argument_transcripts/01-1107.pdf. For a more entertaining account, only Southerner. on his experiences growing up in Savan- In his memoir, he reflected nah, GA. The impact of Justice Thomas’ remarks is not entirely clear.The impact of Justice Thomas’ remarks Although Virginia’s cross-burning ban, the the Court ultimately struck down consistent with the First Amend- majority acknowledged that a “state, out with the intent to intimidate,” ment, may ban cross burning carried unprotected speech for such finding a new area of constitutionally most likely to inspire fear of bod- “true threats” of “intimidation that are ily harm.” 32–33cial Decision-Making, 9 N.Y. City L. Rev. 31, (citing Ex parte G.C., No. (2005) 29, 2005) (Parker, J., dissenting)). 1040001, 2005 WL 1793345, at *22 (Ala. July fidence 376 jurisdiction its distinct with each of government, spheres of several one or the state God, not and ‘that God,’ granted by limited authority and rights.’” of all our source man, is the by established any government too can or beliefs, it of personal principles religion is a set Although experiences. shape personal public judges cause the basis that minority not only on the important, as more legitimate and view the institution more trustworthy to become and perspec- that the “interplay of diverse views but also on the grounds important and decision-making” by bringing tives can enrich judicial perspectives to the bench.traditionally excluded “minority Therefore, narratives and key role in giving legitimacy to the judges can play a values of racial minorities.” \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 24 2-MAY-14 7:29 ing of the meaning of cross-burning. During an argument in favor of a “symbol of [a] reign of terror” the law, he noted that crosses were . . . in the South” and interjected: during the “100 years of lynching effects of . . . the burning cross?” “Aren’t you understanding . . . the encourage[ impartiality[ ] judicial single set of val- ] by ensuring that a not dominate judicial decision-making.” ues or views [does] First Amendment challenge to a Virginia law prohibiting cross-burning, challenge to a Virginia law prohibiting First Amendment Clarence Thomas—whoa usually silent Justice segre- grew up in the gated South highlights the importance of intersectionality—lifehighlights the importance experiences which by individual but are certainly shaped, are not wholly determined, social identity. instance in For 34929-nde_28-1 Sheet No. 193 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 193 34929-nde_28-1 34929-nde_28-1 Sheet No. 194 Side A 05/07/2014 15:37:06 R R 377 all MPLICATIONS I Carter’s commit- Carter’s OLICY 147 P UBLIC e Sonia Sotomayor to the United States g P Jud UDICIARY AND g J , 149 IVERSE population . . . .” population THICAL OF A D , E lawyer (May 26, 2009, 10:13 AM), http://www.whitehouse.gov/the_ ORAL note 112, at 122 (footnote omitted). M note 34, at 1148 (emphasis added). OUSE 150 H 152 LIFE EXPERIENCE & JUDICIAL DECISION MAKING DECISION JUDICIAL & EXPERIENCE LIFE supra , supra HITE ROADER (emphasis added). In light of this, “[h]e was committed to women’s equality of was committed to women’s equality In light of this, “[h]e at 1149. , W B Remarks by the President in Nominatin Id. Id. Id. He found such experience in Sonia Sotomayor who, in He found such experience in 148 HE 151 President Obama has similarly declared: President Obama Supreme appointment to the United States In making his first President Carter was driven to appoint more women to the federal to appoint more Carter was driven President This wealth of experiences, personal and professional, have This wealth of experiences, personal perspectives that present helped me appreciate the variety of themselves in every case that I hear. It has helped me to under- and arguments of stand, respect, and respond to the concerns as to the views of my col- litigants who appear before me, as well leagues on the bench. never to forget the real-world conse- I strive businesses, and quences of my decisions on individuals, government. We need somebody who’s got the heart, the empathy, to recog- who’s got the heart, the empathy, We need somebody to be a young teenage mom.nize what it’s like The empathy to or gay, like to be poor, or African-American, understand what it’s or disabled, or old. I’ll be select- And that’s the criteria by which ing my judges. 150. Crowe 151. 152. 148. 149. 147. Clark, Such statements have the potential to instill public confidence in the Such statements have the potential VI. T Supreme Court press_office/Remarks-by-the-President-in-Nominating-Judge-Sonia-Sotomayor-to-the- United-States-Supreme-Court/. judiciary, but they must be more than just political rhetoric.judiciary, but they must be more than As dis- affect decision making.cussed throughout, experiential factors In outcomes of cases.many instances it even changes the This has a to the law.profound impact on everyone subjected Therefore, as a matters. matter of public policy, experience 2014] \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 25 2-MAY-14 7:29 opportunity as a substantive matter and believed that women’s presence matter and believed that opportunity as a substantive confidence in the promote greater public trust and on the bench would matter.” judiciary as a symbolic . . . tested by obstacles Court, he sought a nominee with “[e]xperience because “[i]t is experience and barriers, by hardship and misfortune” and a sense of compassion; an that can give a person a common touch works and how ordinary people understanding of how the world live.” response, agreed: judiciary by his deep commitment to human and civil rights as well as and civil rights to human by his deep commitment judiciary of the American should be representative that the judiciary his view not of the “population, ment to women’s equality was shaped by the women around him, the women around was shaped by women’s equality ment to were officials who and his administration his wife, mother, including women. 34929-nde_28-1 Sheet No. 194 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 194 34929-nde_28-1 34929-nde_28-1 Sheet No. 194 Side B 05/07/2014 15:37:06 R R R R the [Vol. 28 with But this or ht to Drop Mar- 158 g 452, 454 (2010) for Anti-Gay Extremists Call ENDER Lynne N. Henderson, (July 24, 2012), http:// See . & G e Never Thou g OL Thus, empathy has no Thus, empathy ROGRESS Zack Ford, P 155 , 6 P Gay Jud See HINK T ETHICS & PUBLIC POLICY Justice Sotomayor has argued that has Sotomayor Justice But others contend, “the capacity contend, “the But others sides of an argument. A judge uses LAW, 153 154 both Dan Levine, . 1574, 1587–90 (1987). EV Empathy, however, may be effectively used Empathy, however, may be effectively see also . L. R 159 157 Difference in Judicial Discourse ICH Prospective jurors are of course questioned about Prospective jurors are of course questioned note 94, at 136 (footnote omitted). note 112, at 122. note 112, at 124. note 112, at 124. 160 (Apr. 6, 2011), http://www.reuters.com/article/2011/04/06/us- , 85 M supra supra supra , supra at 125 (citing 28 U.S.C. §§ 455(a), (b)(1) (2006)). But the lines of this at 137. e to Recuse Herself Because She’s Gay, EUTERS g R NOTRE DAME JOURNAL OF Id. Id. A purported middle approach is that empathy’s place in our is that empathy’s middle approach A purported 156 Some legal commentators view “judicial empathy as necessary to as necessary empathy “judicial view legal commentators Some trier-of-fact to exercise empathy when acting as Why permit juries 156. of judicial reasoning often dismiss it Judges who admonish empathy as a mode 155. Crowe 158. 160. 154. Nancy Maveety, 157. Crowe, 159. Bandes, 153. Crowe, e Case, ality and Empathy g g Le on grounds that it disrupts formalistic rules, the separation of powers doctrine, stare deci- on grounds that it disrupts formalistic rules, of rules. sis, fidelity to law, or mere mechanical application for Illinois Jud admonition are uncertain. activists have called for the recusal of Most recently, anti-gay judges deciding cases involving same-sex marriage. (quoting Justice Sonia Sotomayor). thinkprogress.org/lgbt/2012/07/24/573541/anti-gay-extremists-call-for-illinois-judge-to- recuse-herself-because-shes-gay/ a chal- (discussing Judge Hall’s involvement in hearing while a member of the Alliance of Illinois lenge to Illinois’ ban on same-sex marriage and encourage[ing] respect and unbiased Judges, a group committed to “promoting to the judiciary, the legal profession, and treatment for LGBT individuals as they relate the administration of justice”); ria gaymarriage-judge-idUSTRE7356TA20110406) (discussing U.S. Judge Vaughn Walker’s involvement as a homosexual in the California gay marriage ban commonly known as Proposition 8). 378 \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 26 2-MAY-14 7:29 reach moral, reasoned decisions.” moral, reasoned reach policy lobbyists, be confined to “legislators, public legal system should attorneys, and juries.” same function? to do the same when serving the but disallow judges point to the empathy has no place in decision making Those who argue disqualify themselves “‘infact judges must in which any proceeding including ‘where might reasonably be questioned,’ their impartiality bias or prejudice concerning a party.’”they have a personal to place oneself in the shoes of empathy as just one of many tools toward understanding conflicting empathy as just one of many tools claims. understanding the litigants’ per- “Empathy assists the judge in the legal issue of which litigant spectives . . . it does not help resolve ought to prevail.” “by ignoring our differences as women or men of color we do a disser- color we or men of women as differences our “by ignoring to the law and society.” vice both and as judges to their qualifications for empathy is irrelevant of judges legal opinions.” formulate sound ability to place in sound decision making because it renders the law less predict- the law less because it renders decision making place in sound able. misconstrues and over-exaggerates the role of empathy.misconstrues and Empathy is dis- bias.tinct from personal favoritism to one Personal bias would indicate position over another. same as sympa- Nor is empathy (a capacity) the (emotions).thy or compassion understanding “Empathy entails is a feeling another person’s perspective”; “sympathy object of the emotion.” 34929-nde_28-1 Sheet No. 194 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 194 34929-nde_28-1 34929-nde_28-1 Sheet No. 195 Side A 05/07/2014 15:37:06 R R R , 379 uous g unambi as previously to live on until 164 Sandra Day O’Connor , g Yet they are not they are Yet 161 Dred Scott 80 (noting that Justice Ginsburg was faced with The law aims to channel and influence 165 supra , g note 94, at 137 (footnote omitted). This is achievable only with empathy, aided by This is achievable only with empathy, note 94, at 139 (footnotes omitted). note 112, at 129 (footnote omitted). 166 supra should have recused themselves? Certainly not. Certainly recused themselves? should have supra supra LIFE EXPERIENCE & JUDICIAL DECISION MAKING DECISION JUDICIAL & EXPERIENCE LIFE Safford Unified School District #1 v. Reddin Safford Unified School 162 In Id. See Ruth Bader Ginsbur 163 Those who advocate for total ignorance of one’s life experiences ignorance of advocate for total Those who Conversely, if such strict adherence to even the most Conversely, if such strict adherence , http://www.oyez.org/justices/sandra_day_oconnor (last visited Apr. 6, 2014) , http://www.oyez.org/justices/sandra_day_oconnor 166. 164. Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. 364 (2009). 165. Bandes, 162. 163. Judge Posner argues that “when faced with legal questions lacking determina- 161. Crowe, YEZ an “extremely hostile” environment at Harvard due to her gender); an “extremely hostile” environment at Harvard O (explaining that Justice O’Connor faced a difficult job market after graduating law from (explaining that Justice O’Connor faced a difficult wanted to hire her and only one offered Stanford because “[n]o law firm in California her a position as a legal secretary”). tive answers, judges need to consult good judgment,” defined as “an elusive faculty best understood as a compound of empathy, modesty, maturity, a sense of proportion, bal- ance, a recognition of human limitations, sanity, prudence, a sense of reality and com- mon sense.” Bandes, 2014] “solely upon found a verdict to return and ability bias personal possible court.” of the and instructions evidence the \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 27 2-MAY-14 7:29 human behavior. law, judges must constantly seek Thus, “[t]o apply the intentions, perceptions, and to understand and predict motivations, other aspects of human conduct”—it under- is empathy that makes that standing possible. and common sense wisdom in place of strict, machine-like adherence wisdom in place of strict, machine-like and common sense always possible to fail to understand that it is not to the rule of law to a cold, sterile with complete certainty, even interpret every issue result. instructed to remain completely narcissistic, sterile, or cold. sterile, narcissistic, remain completely to instructed If empa- bias or with “personal is equated on personal experience, thy, based O’Connor and Ginsburg, that Justices then would it follow prejudice” own throughout their discrimination firsthand having experienced legal careers, discussed, the U.S. Supreme Court was asked to determine whether a Supreme Court was asked to determine discussed, the U.S. felt that subject of a strip search subjectively thirteen-year-old female the search was intrusive. a legal question will never The answers to such simply looking to the rule of law.be plainly given by This is precisely the purpose of to legislative intent to determine why judges often turn law.enacting any given ask: the purpose, one must typically In defining to protect?what was this law meant were con- What kinds of situations templated? become clearer for the purpose of the law can The search the law was intended to address. by empathizing with the exact situation the rule of law and empathy are It is wrong to assert that upholding mutually exclusive. laws were always possible, what should we make of the decisions whose laws were always possible, what should dissents later carried the day? to allow Are we of the public, garners the courage the legislature, subject to the whims to rectify immorality? essential capacity for living in the Empathy is “an of moral reasoning . . . .social world, and a basic component A total total lack of remorse, is the lack of empathy, coupled with an equally main defect of psychopaths.” 34929-nde_28-1 Sheet No. 195 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 195 34929-nde_28-1 34929-nde_28-1 Sheet No. 195 Side B 05/07/2014 15:37:06 R R R R R R R [Vol. 28 note 15. Increased presence supra For example, Justice , Notable exclusion of Notable exclusion Historically it has been 168 170 167 172 Way to Go g ETHICS & PUBLIC POLICY But even presently serving “token” But this is just one example of the LAW, 169 173 ONCLUSION note 65, at 448. note 65, at 441. note 12. C Ginsburg further believes that “the presence Ginsburg further believes that “the supra supra supra note 94, at 137. 171 note 22. note 58. Palmer, supra supra enerally enerally supra g g Bandes, NOTRE DAME JOURNAL OF See See See Women in the Federal Judiciary: Still a Lon In addition to the demonstrated effect of the presence of a female effect of the to the demonstrated In addition The life of the law has not been logic: it has been experience. The The life of the law has not been logic: moral and political theo- felt necessities of the time, the prevalent or unconscious, even the ries, intuitions of public policy, avowed fellow men, have had a prejudices which judges share with their 173. 172. Bazelon, 171. O’Connor & Yanus, 170. 169. 168. 167. O’Connor & Yanus, 380 the position in to put oneself allowance and an life experiences, one’s of another. pri- is the differences, innate biological than rather This, in shap- matter characteristics social and other gender reason why mary with those of colleagues judges and of individual ing the decisions interact. whom they women of diverse the representation an appellate panel, judge on favorably—particularly public policy judges influences to women. This and collegiality. is important for socialization \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 28 2-MAY-14 7:29 of women on the bench made it possible for the courts to appreciate of women on the bench made it possible sexual harassment belongs under earlier than they might otherwise that law].” Title VII [as a violation of civil rights judges may realize more hostility as minorities; logically, one may be judges may realize more hostility as less likely to be vocal in a hostile environment. larger picture: because life experience aids in the ability to achieve larger picture: because life experience diversity must be more than sound judicial decision making, greater just aspirational. women attorneys and judges who have brought sex discrimination onto women attorneys and judges who have the legal and political agenda. Ginsburg reported that the quality of her treatment on the Court and Ginsburg reported that the quality decreased after Justice her comfort in dealing with colleagues O’Connor’s departure. women judges sends a signal to young women about their career aspira- a signal to young women about their women judges sends seeking judge- many qualified women lawyers from tions and may keep ships.the federal bench, are fairly represented on But when women this nation and reflect the diverse population of the courts will better the court under- may have more confidence that both women and men implications of its rulings. stands the real-world of women on the bench improves the quality of justice: women judges bench improves the quality of justice: of women on the on the lives of of the impact of the law can bring an understanding of how best to by enriching courts’ understanding women and girls purpose and effect of the law.realize the intended Ginsburg has Justice some of the dis- were more women on the bench, stated that if there “because the women will crimination cases might turn out differently relate to their own experiences.” 34929-nde_28-1 Sheet No. 195 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 195 34929-nde_28-1 34929-nde_28-1 Sheet No. 196 Side A 05/07/2014 15:37:06 R R R 381 178 that OLDEN http:// not , 14 G available at It is human nature for 1 (1881), 177 AW L political representatives themselves”. g 174 OMMON amon C HE The Woman Has Robes: Four Questions , T Nor would the same be true for any two men the same be true Nor would OLMES 175 H note 154, at 455–56 (quoting Sandra Day O’Connor). note 136 (quoting Justice Sonia Sotomayor). ENDELL supra supra LIFE EXPERIENCE & JUDICIAL DECISION MAKING DECISION JUDICIAL & EXPERIENCE LIFE W note 5, at 10 (emphasis added). . 489, 492–94 (1984). Shirley S. Abrahamson, EV LIVER Specifically in cases involving gender discrimination, out- involving gender discrimination, Specifically in cases See supra , 176 No one is just a woman or just a man.No one is just a woman Each person has diverse It is important to recognize that no two women will decide a case in will decide a case that no two women to recognize It is important good deal more to do than the syllogism in determining the rules the determining in the syllogism to do than deal more good governed. should be men by which U. L. R 175. In the same way that “competing ideas about what it means to ‘represent 176. Maveety, 177. 178. Savage, 174. O ATE ENNION B www.gutenberg.org/catalog/world/readfile?fk_files=3198728&pageno=2). women’ make it difficult to define the substantive political representation of women, especially when such differences are found G When we appreciate the experiences that are commonly shared by one When we appreciate the experiences are able to see the broader impli- particular group, such as women, we cations of experience on any judge. In the future we should refocus of decision making.our treatment of gender in the role Rather than on the bench, we should look compartmentalizing the role of women Justice.broadly to the experiences of each It is true that gender dis- that is felt, whether firsthand or crimination is just one experience secondhand, commonly by women. Because gender, and other social it is important to have characteristics, shape judges’ life experiences, diverse experiences on the bench. While both women and men are at stake, the court as a whole is capable of understanding the issues bring diverse experiences to better served when its individual judges the bench. 2014] \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 29 2-MAY-14 7:29 comes differ depending on whether there is a female on the court who on whether there is a female comes differ depending discrimination whether directly or indirectly, similar has experienced, in the case at hand. to that which is involved the bench experiences that affect experiences and each will bring to making.their own view of the law, life, and decision All life experiences making. affect and influence judicial decision precisely the same way. precisely or any two members of any race, religion, or sexual orientation. race, religion, or members of any or any two How- that of discrimination that involves a form deciding a case ever, when exper- those life can experience, class of discriminatees only a certain decision making. impact judicial iences will The premise is court. have a different “voice” on the women or minorities Rather, experiences. tendency to relate to individualized there is a natural the old adage, “a Day O’Connor has restated Although Justice Sandra conclusion” in wise old woman will reach the same wise old man and to have nine clarifies it is “helpful to the Court deciding cases, she yes, even gen- backgrounds and experiences and, members of different der. that’s a good life experiences to the task, and We bring different thing.” “personal experiences [to] affect the facts that judges choose to see.” “personal experiences [to] affect the 34929-nde_28-1 Sheet No. 196 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 196 34929-nde_28-1 34929-nde_28-1 Sheet No. 196 Side B 05/07/2014 15:37:06 \\jciprod01\productn\N\NDE\28-1\NDE110.txt unknown Seq: 30 2-MAY-14 7:29 34929-nde_28-1 Sheet No. 196 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 196 34929-nde_28-1