DEPARTMENT OF POLITICAL SCIENCE ~ TUFTS UNIVERSITY STUDENT RESEARCH BRIEFING SERIES VOLUME III, ISSUE I SPRING 2014 THE SILENT MINORITY: AN EXAMINATION OF FEMALE JUSTICES OF THE SUPREME COURT DURING ORAL ARGUMENT CAROLINE HELEN HOWE The Student Research Briefing Series is designed to publish a broad range of topics in American Politics, Comparative Politics, Political Theory and Philosophy, and Interna- tional Relations. The briefings are intended to enhance student appreciation of student TABLE OF CONTENTS research completed in the Department of Political Science. In addition, the publication hopes to serve as outreach to interested undergraduates and prospective students consid- INTRODUCTION 4 ering a major in Political Science. This publication is student-produced and the research was conducted during Caroline’s undergraduate studies. To read The Silent Minority please visit http://ase.tufts.edu/polsci/studentresearch/SilentMinority.pdf. LITERATURE REVIEW 12 In The Silent Minority: An Examination of Female Justices of the Supreme Court During Oral Argument Howe seeks to recognize and substantiate the value of gender diversity on Supreme Court jurisprudence. She explores the impact of female Justices on oral ar- METHODOLOGY 35 gument from the behavior and treatment of the Justices to the content of their arguments. Howe found much of the behavior of female Justices on the Court exhibited their confi- dence and willingness to engage with their colleagues in a public and meaningful way. The presence of many “perspective statements” throughout the broad swath of gender BEHAVIOR & 45 cases also demonstrated that female Justices are unafraid to link their identity with their TREATMENT speech when it comes to gender cases. Howe’s study demonstrates that a value does lie in the specific contribution of women to the Court. The white, male lens should not be considered a neutral perspective, but instead one among many perspectives that can con- PERSPECTIVE 111 tribute to a better understanding of the impact of our laws on the individual rights of our STATEMENTS citizenry. The increased representation of women on the Supreme Court, and on every court, will make huge strides towards ensuring the representation of those interests in the laws of our country. CONCLUSION 135 About the author Caroline Howe, T ‘14, majored in Political Science. Her interest in politics, specifically the Supreme Court, began during the 2008 Presidential primary campaign. She was in- BIBLIOGRAPHY 151 spired by President Obama’s improbable bid for the White House and his advice to be- come involved in one’s community. Shortly thereafter, Caroline volunteered for her town’s elections where she found her interest in politics begin to cross-pollinate with her academic work. During the summer of 2008 at Georgetown University she made her first visit to the Supreme Court and became engrossed in judicial philosophies and Court politics. Her interests continue to develop in her junior year at Oxford University. She developed a heightened awareness of gender discrimination and went on to study femi- nist legal theory which provided the intellectual foundation and backbone for her thesis. Caroline will be teaching in England for the 2014-2015 academic year and plans to at- tend law school after her teaching appointment. The Department of Political Science, Tufts University, Packard Hall, Medford, MA 02155, USA Phone: 617-627-3465; Fax: 617-627-3660; Website: http://ase.tufts.edu/polsci/default.htm The Silent Minority: An Examination of Female Justices of the Supreme Court during Oral Argument An honors thesis for the Department of Political Science Caroline Helen Howe Tufts University, 2014 Table of Contents: Chapter 1: Introduction……………………………………………………………………………4 Chapter 2: Literature Review…………………………………………………………………….12 I. History of Feminist Legal Theory II. Standpoint Theory III. Influential Studies IV. The Justification for Oral Argument V. The Value of Oral Argument VI. Conclusion Chapter 3: Methodology…………………………………………………………………………35 I. Background and Guiding Research Questions II. Data Collection: Identification of Cases III. Data Collection: Analyzing Transcripts Chapter 4: Behavior and Treatment……………………………………………………………...45 I. Introduction II. Behavior of Female Justices a. Hypotheses b. Words Spoken c. Speaking First d. Referenced e. Referencing One Another f. Argumentation Style g. Interruptions III. Treatment of Female Justices a. Main Question b. Interrupted c. Ma’ams and Sirs IV. Conclusion V. Appendix for Chapter 4……………………………………………………………...78 Chapter 5: Perspective Statements……………………………………………………………...111 I. Introduction II. Personal Life III. General Experience as a Woman IV. History/Marginalized Class V. Conclusion Chapter 6: Conclusion…………………………………………………………………………135 I. Introduction II. The Benefits of Attending Oral Argument III. Hall v. Florida IV. Sebelius v. Hobby Lobby Stores 2 V. Important Findings of My Study VI. Future of My Study VII. Conclusion Bibliography…………………………………………………………………………..………..151 3 Chapter 1: Introduction The Supreme Court addresses almost every high profile, controversial, and influential issue that comes before the other two branches of the federal government. But unlike the legislative and executive branches, the public has a limited control of the outcome of the Court's decisions. Instead, the result boils down to the arguments of nine judges, all capable of influencing judicial outcomes at every level of the judicial system. And of course none of the nine is elected directly by the people, and all serve a lifetime appointment. While the judicial process, unlike the political process, is often viewed as an objective, decision-making procedure, the life experiences of those who serve on any bench influence to some degree the methodology behind the final decisions of judges. If, on the one hand, the people drafting the laws of the land view the world through a particular lens — say a white, heterosexual, male, and privileged one — and if, on the other hand, the people interpreting those laws also view the world through that same lens, then naturally the interests of a substantial segment of the population — not white, heterosexual, male, nor privileged —will at best be absent, and at worst disadvantaged by those laws. Thus, diversity in every possible sense, on the parts of both lawmakers and interpreters, becomes necessary and essential. One side of this twofold lawmaking structure remains responsible to the public: those who make the laws. But the judicial side remains equally as important, especially considering the judiciary's lack of accountability to the public. I have focused this study on one aspect of this diversity: the gender of the Supreme Court Justices. Historically, the Supreme Court has been comprised entirely of men, but today one-third of the Supreme Court is female. I regard the composition of today’s Supreme Court as a perfect subject for the study of the value of gender diversity. 4 My study focuses on several important and related questions: Given that men and women do not write decisions with any noticeable differences, and given that Justices O’Connor and Ginsburg are fond of claiming that wise old women and wise old men will reach the same decision, what is the specific value of having women on the Court, as opposed to gender- empathetic men? Given that presidents often have a pool of equivalently qualified Supreme Court nominees from which to pick, why should a president choose to nominate a woman to the Court? Should we aim for gender balancing on the Court, or does gender composition make no difference to the objectives of our judicial system and the highest Court in that system? My thesis will focus on the most public duty performed by Justices: oral argument. Oral argument presents an opportunity to study both the behavior and treatment of the Justices, as well as the content of their exchanges on the bench. The increased number of women serving on the Supreme Court could potentially be altering how Justices interact with one another and with the petitioning lawyers during oral argument, as well as with their willingness to engage with gender issues during argument. Additionally, with the most recent introduction of two women to the Court, female Justices can begin to move away from token status toward a critical mass in which they are able to contribute as individuals and not simply as a representative of a group. Questions I will focus on during this study include the following: are the female Justices treated differently by their male colleagues, or by the petitioners? Do female Justices themselves treat their male and female colleagues differently? Do they treat male and female petitioners differently? What types of statements are female Justices making during cases that pertain to gender? Are women making “perspective statements” during oral argument that relate specifically to their life experience? Do these statements create a larger justification for nominating women to the Court beyond merely democratic rationales? 5 By measuring the participation of female Justices in Supreme Court oral argument, both quantitatively and qualitatively, I hope to discover answers to some basic preliminary questions revolving around gender and our justice system. By assessing the presence of patterns in their interactions, as well as the presence of gender awareness in their statements, I hope to foster a more honest dialogue about the influence of personal experience in a highly subjective judicial system.