This month, Justice Sonia Sotomayor made a revealing observation to an audience at the New York University School of Law about being the first Latina on the U.S. Supreme Court:
Our research on federal judges suggests that Justice Sotomayor is not alone in feeling this way. Judges who are members of underrepresented groups take an approach to writing legal opinions that differs from that of their White male colleagues. Here’s why.
Stereotypes about ability are formed early — and they shape how we view ourselves
Starting very young, research finds, children internalize both overt and implicit messages about which expectations and skills are linked to their gender and race. These internalized messages affect confidence and the way that we assess our own abilities.
For instance, boys are more likely to overestimate their abilities in areas that are stereotyped as masculine (like math, science and politics), while girls are more likely to underestimate their abilities in those areas, even faced with objective evidence to the contrary. And negative stereotypes about racial identity and ability can create an unconscious fear of confirming the stereotype, producing anxiety that affects performance.
These internalized beliefs can sometimes produce feelings of insecurity known as “impostor syndrome,” especially when individuals enter environments in which stereotypes suggest they do not belong. When individuals conform to the stereotype of how members of an occupation are “supposed to” look, they are presumed competent. But for those who don’t match the stereotype of an occupation, like lawyer or judge, this can create additional pressures on individuals from underrepresented groups to prove their competence.
Research about women in Congress and state legislatures suggests something similar. Because female legislators view themselves as being more electorally vulnerable to challengers than their male colleagues in these majority-male institutions, they work harder to show their competence by overpreparing for committee meetings, prioritizing constituent concerns and introducing more legislation.
A record number of women are serving in Congress. That’s good for constituents.
The legal profession still reinforces stereotypes
Law schools have made big gains over the years in diversifying their student bodies, but these gains don’t always translate into greater representation in the practice of law. For example, people of color continue to be underrepresented in prestigious judicial clerkships, and law firms have not significantly changed the racial and gender diversity of leadership positions.
Because White men are overrepresented as lawyers and judges relative to their share of the population, this helps to create an association between demographic identity and occupation. One task force report found that women and non-White lawyers report being mistaken for administrative staffers, interpreters and even criminal defendants. This further reinforces the idea that these individuals have to do more to show that they belong in elite positions in the profession.
If they are nominated for federal judgeships, women and people of color receive lower American Bar Association ratings and the Senate takes longer to confirm them, despite their having comparable qualifications.
We suspected that high-achieving women and people of color in the legal profession who have stuck it out despite these obstacles have developed strategies for dealing with pressure and societal expectations — and use these strategies on the bench. In particular, we wanted to know whether stereotypes and socialization propel underrepresented judges to do more to justify their rulings when they speak for a court by writing a majority opinion.
Why do so few Black women serve in high-level federal posts?
Here’s how we did our research
To test our expectations, we collected nearly 3,000 cases decided by judges on the federal appeals courts between 2008 and 2016. These courts are the last stop for most litigants in the federal judicial system — and for judges, they can be a steppingstone to the Supreme Court. Eight of the nine current justices, including Sotomayor, served on U.S. courts of appeals.
We recorded public information about the judges who wrote the majority opinions, such as race and gender, their educational and professional backgrounds, their length of service as judges, and the identities of their appointing presidents, as well as information about the cases and litigants that would affect the amount of discussion in the majority opinion. For each majority opinion, we calculated the length and how many citations to legal authorities were included in the author’s reasoning.
After accounting for other factors that might affect an opinion’s length or depth of explanation, we found that judges who are women and people of color go further to explain their rulings and that they support them with more legal sources, in contrast to approach of the most common demographic group on the federal bench, White men.
For instance, non-White judges wrote opinions that contained on average about 20 percent more citations discussed in a paragraph or more of text than were contained in the opinions written by White judges. Female judges wrote opinions that were about two-thirds of a page longer than those of their male peers, all else being equal.
We did not find any differences between female judges of color and other groups, probably because few minority women wrote majority opinions during this time.
Professors, check out TMC’s ever-expanding list of classroom topic guides.
Workload inequity is a double-edged sword
So is the pressure to work harder a good or bad thing? There is unquestionably a cost associated with writing more. Every page adds up, and over time, this creates workload imbalances that could lead to burnout for judges who are in underrepresented groups.
However, one upside of the trend we discover is that as the judiciary becomes more diverse, one result might be the writing of opinions that are more thorough and better grounded in precedent. This presumably would be a positive development for those who turn to the courts to resolve disputes.
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Laura Moyer is associate professor of political science at the University of Louisville and is co-author of “Diversity Matters: Judicial Decision Making in the U.S. Courts of Appeals” (University of Virginia Press, 2015).
John Szmer is professor of political science and public policy at the University of North Carolina at Charlotte and co-author of “The View from the Bench and Chambers: Examining Judicial Process and Decision Making on the U.S. Courts of Appeals” (University of Virginia Press, 2014).
Susan Haire is professor of political science at the University of Georgia and co-author of “Diversity Matters: Judicial Decision Making in the U.S. Courts of Appeals” (University of Virginia Press, 2015).
Robert K. Christensen (@voiceforpa) is professor and George W. Romney Research Fellow at the Romney Institute of Public Service and Ethics, Brigham Young University.
Data for this project were collected with support from the National Science Foundation (NSF SES #1655159, 1654614, 1654559, 1654697). Any opinions, findings, and conclusions or recommendations expressed are those of the authors and do not necessarily reflect the views of the National Science Foundation.