REVIEW ESSAY Women in the American Judiciary: Their Influence and Impact

This article reviews the women and politics literature on gender and the American judiciary. Specifically, it explores what we know about the behavior of women on the bench: Do women judges behave differently than their male counterparts, or do they blend in and conform to existing norms and institutional cultures? The research in this area largely has gone in two directions. First, there appears to be a great deal of consensus in the literature that in sex-discrimination cases, women judges are more supportive of women’s claims than men judges, regardless of their ideology. Second, there is much less consensus over whether or not women employ different methods of reasoning, such as a “difference” jurisprudence. [Article copies available for a fee from The Haworth Document Delivery Service: 1-800-HAWORTH. E-mail address: <getinfo@haworthpressinc.com> Website: <http://www.HaworthPress. com> © 2001 by The Haworth Press, Inc. All rights reserved. ] Twenty years ago, women were a mere 2% of the 26,650 state trial and appellate court judges in the United States (Epstein 1993, 243), and there were only 10 women on the U.S. courts of appeals (Cook 1988; Women & Politics, Vol. 23(3) 2001  2001 by The Haworth Press, Inc. All rights reserved. 91 Davis, Haire, and Songer 1993). It was not until 1981 that the first female U.S. Supreme Court Justice, Sandra Day O’Connor, was appointed. Since the 1990s, however, there has been a remarkable increase in the number of female judges at all levels of the American judiciary. President Clinton, for example, appointed more women to the federal bench than any other president, more than doubling the number of women (Goldman 1995; McGlen and O’Connor 1998). In 1993, he added a second woman to the U.S. Supreme Court, Ruth Bader Ginsburg. By 2000, 25% of state supreme court justices were women.1 To date, only three states, New Hampshire, South Dakota, and Wyoming, have not had any women on their supreme courts (Bratton and Spill 2000). Despite these gains, even today most women judges serve alone or in pairs. Only two states, Michigan and Minnesota, have had female majorities on their state supreme courts. Given the small numbers of women, most research on female judges and their impact on legal policy has focused on their status as “tokens” (see Kanter 1977; Yoder 1991): Do women behave differently than their male counterparts, or do they blend in and conform to existing norms and institutional cultures? The search for differences between men and women judges largely has gone in two directions. One line of research focuses on whether or not women judges are more sympathetic to policy issues of interest to women, particularly sex-discrimination. For example, do they vote in favor of women’s claims in sex-discrimination cases and other issues of concern to women? Another line of research, drawn from the work of Carol Gilligan (1982), instead focuses on the legal reasoning that women employ. Do women judges approach legal policy issues from a different perspective than men judges? In other words, given their unique experiences, do women judges speak “in a different voice? ” WOMEN JUDGES AND SUPPORT FOR WOMEN’S RIGHTS Some of the earliest research in the judicial politics subfield focused on differences in the sentencing behavior of trial judges. There is some evidence that because of differences in sex-role socialization, women tend to fear crime more than men (see, for example, Hurwitz and Smithey 1998). Thus, it could be argued that women judges might treat criminal defendants more harshly than men judges, especially in rape cases. Early research, however, produced some conflicting conclusions about this assumption. One study of “Metro City” judges conducted 92 WOMEN & POLITICS