Is the Supreme Court Biased Against Women Lawyers?

I recently came across this study, released earlier this year by three law professors--Kaheny, Sarver, and Szmer--which concludes that "Supreme Court justices are less likely to support litigants represented by women." Their research, even after controlling for potentially biasing variables like lawyers' prior experience and clerkship background, found that "as the proportion of women attorneys on the petitioner’s side increases relative to that of the respondent, the likelihood of a justice making a pro-petitioner decision decreases. Substantively, the larger role women attorneys play in constructing arguments, the less likely they are to convince the justices to side with their client." Ouch.

If you're intersted in exploring some methodology critiques, the Empirical Legal Studies blog has several interesting comments in response to the study. Assuming the study has merit, what causes this gender bias? The easiest explanation (that a mostly male court is more likely to relate to mostly male litigants) seems almost too easy, but is it? Similar scholarship in Canada, where 4 of the country's 9 Supreme Court justices are women, indicates that women litigants are more likely to win there. Undermining the conclusion that this is a purely Canadian phenomenon, Kaheny, Sarver, and Szmer's results indicated that the two female U.S. Supreme Court justices "were more likely to side with litigants represented by more women" than their male counterparts.

Kaheny, Sarver, and Szmer made several other points I found interesting:


  • Women lawyers face a double-bind because "in most professional institutions, including legal institutions, cultural bias toward the male stereotype is a reality. For example, male attorneys are rewarded for ruthless behavior in the courtroom, but capable female lawyers are often negatively stereotyped as overly assertive and aggressive if they behave in the same manner."
  • The media is part of the problem: "In a study of media portrayal of women lawyers, it was found that overwhelmingly women were represented as either emotionally conflicted (recall Ally McBeal) or heartless and uncaring people, leading the author to conclude that television’s reinforcement of gender stereotypes further helps to undermine the power and authority of real-life women attorneys."
  • The dearth of female Supreme Court clerks might play into later gender bias by the Court: "hiring patterns of Supreme Court clerks over time provide evidence of disparate treatment of women, if not outright discrimination.. . Despite the passage of time, the rise in the number of women law clerks has not corresponded with the rise of women graduating from law school and entering the legal profession. In fact, during the 2004-2005 term, 15 of the 35 law clerks hired were women; over the 2005-2006 term, the proportion of male to female clerks had fallen – only 13 of the 37 clerks were women. Most recently, in the 2006-2007 term, the Court hired just 7 women clerks, versus 30 male clerks. During this period, just under half of the law school graduates were women ."
  • Clients also discriminate against women attorneys: "In an analysis of the language employed by attorneys and clients, Bogoch (1997) finds that clients are more deferential to men, even though the content of the language used by the attorneys did not vary across gender."


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