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How Gender Bias Subtly Influences Supreme Court Decisions

New research suggests male justices are more receptive to appeals that line up with gender stereotypes.
The Supreme Court of the United States in Washington, D.C.

The U.S. Supreme Court building.

Arguing a case before the United States Supreme Court is the highlight of any attorney's professional life. But if you get such an opportunity, should you emphasize facts and logic, or appeal to emotion?

New research suggests the answer depends upon whether you are a man or a woman.

An analysis of 313 Supreme Court cases found "male justices evaluate counsel based on their compliance with traditional gender norms, rewarding male counsel for cool, unemotional arguments, and rewarding female counsel for emotionally compelling arguments," writes a research team led by Idaho State University political scientist Shane Gleason.

In contrast, "we find no evidence that gender norms shape the opinion of female justices," the researchers add in the journal American Politics Research. "Our results highlight the durability of gendered expectations."

Using sophisticated software, Gleason and his colleagues analyzed the emotional content of 601 briefs submitted to the court. They measured the "underlying gendered content" of each by noting the presence or absence of 915 emotionally charged words, including "love," "hate," "annoy," and "grief."

Briefs that are more heavily laden with such terms "are characterized as more feminine," while those that contain relatively few are considered "more masculine, and in line with the professional norms of a 'good' attorney," they write.

This level of emotional content was then compared to the gender of the attorney who submitted the brief, and the gender of the justice who wrote the majority opinion in the case. The cases covered the years 2010 to 2013; during that period only about 12 percent of all attorneys filing briefs were female.

The researchers found a pattern that apparently reflects unconscious sexism. They found "male attorneys are more successful arguing before male justices" when they make "cool, unemotional arguments." In contrast, female attorneys have more success making their case when they offer "emotionally compelling arguments."

"It is unclear whether the findings extend to other courts," they add. But even if it's limited to the Supreme Court—which seems doubtful—these results are troubling.

"Enforcing traditional gender norms perpetuates the relative authority of men's voices compared with women's," the researchers write. "Even if done subliminally, there are profound consequences for how inclusive the legal process is."

Add this to the recent evidence that female lawyers arguing before the Supreme Court are interrupted more frequently than their male colleagues, and you start to suspect justice, while blind, may not be gender-neutral.