Trailblazers and Those That Followed: Personal Experiences, Gender, and Judicial Empathy

This article investigates one causal mechanism that may explain why female judges on the federal appellate courts are more likely than men to side with plaintiffs in sex discrimination cases. To test whether personal experiences with inequality are related to empathetic responses to the claims of female plaintiffs, we focus on the first wave of female judges, who attended law school during a time of severe gender inequality. We find that female judges are more likely than their male colleagues to support plaintiffs in sex discrimination cases, but that this difference is seen only in judges who graduated law school between 1954 and 1975 and disappears when more recent law school cohorts of men and women judges are compared. These results suggest that the effect of gender as a trait is tied to the role of formative experiences with discrimination.You know, the young women today can't possibly . understand the pressures of being first . Nothing was good enough, and it took me an awful lot of years to realize how good many of the women really were in relationship to the men's talents. I mean, when I think of it, men that were hundreds of places below us in class were getting great jobs and there were no jobs for us. -Judge Ilana Rovner1Every time I wanted to do something, I had to invent a way to do it because there was no path for me. -Judge Shirley Hufstedler2When U.S. Courts of Appeals' judges Ilana Rovner and Shirley Hufstedler graduated from law school in 1966 and 1949, respectively, nationwide, women comprised less than 5 percent of all law students (www.americanbar.org). In contrast, in 2011, women made up 46 percent of all students enrolled in law school. These judges' comments about the obstacles they faced as trailblazers when entering the legal profession are quite similar to the recollections of former U.S. Supreme Court justices Sandra Day O'Connor and Ruth Bader Ginsburg about overtly discriminatory treatment in law school and the legal profession in the 1950s and 1960s (Ginsburg and O'Connor 2010). Oral histories of the first women appointed to the lower federal judiciary repeatedly touch upon the themes of blatant discrimination against women by law professors, fellow law students, and employers. When this trailblazer generation of female judges joined formerly all-male courts, many of them also came face-toface with exclusionary traditions and practices in their new circuits (Haire and Moyer 2015). For instance, when Florence Allen joined the Sixth Circuit as the first woman, she dined alone at lunchtime because her male colleagues frequently lunched at private clubs that did not admit women.3 Given how widespread discriminatory treatment was for early female appointees, did their personal experiences with discrimination affect how these judges confronted the issue of sex discrimination in their cases? Recent research on the U.S. Courts of Appeals has established that female judges are more likely than men to side with plaintiffs in sex discrimination cases (Boyd et al. 2010; Peresie 2005) and other types of employment discrimination cases (Moyer and Tankersley 2012; Songer et al. 1994). 4 Scholars have speculated that women's personal experiences with sex discrimination (and men's lack of such experiences) could be driving this effect (Martin et al. 2002). For instance, in a survey of Carter's female appointees, many of whom attended law schools during periods marked by stark gender inequality, 81 percent described some form of sex discrimination as the primary challenge facing a woman or man in law (Martin 1990: 207). How might these women judges' personal experiences affect their perspective on cases dealing with sex discrimination? Building on research by others who have examined men's and women's attitudes toward gender equality, we test the premise that the propensity to support sex discrimination plaintiffs should be highest among the group of "trailblazer" women who entered the legal profession during a time when overt discrimination against women was severe and prevalent. …