Would justice be better served in the United States if more Supreme Court judges were women?

"Justice is the first virtue of social institutions, as truth is of systems of thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust." - John Rawls, A Theory of Justice

Introduction

Justice centres around people; it reflects the collective social value of equality that promotes meritocracy and dissuades discrimination. English philosopher John Locke argues that justice centres around the benefit of the public (Theriault, 2009). Subsequently, justice is achieved through the interpretation of law to eventuate fair outcomes for diverse social groups.

The overrepresentation of men in the justice system raises questions around addressing the historical marginalisation and inequality of women in the judiciary to reduce discrimination. The contention of this issue extends to the highest level of the judiciary, particularly the United States (US) Supreme Court whose role is to promote the “public good”, composed of justices nominated by the President, confirmed by the Senate and granted tenure for life (The White House, 2022).

As such, this raises the question of “Do female judges make more just decisions than their male counterparts in legal cases?” A logical extension of this investigation would be: “How would women be added to the judicial system?” Interpreting this proposition as an “affirmative action” policy, in that the proportion of women are increased on the US Supreme Court bench, would this lead to fairer outcomes for the justice herself and the general public?

While increasing the number of women in the Supreme Court justice system presents a superficially valuable means to achieve social justice, I argue against this perspective due to the following:

I. Dichotomously constructing gender fails to acknowledge individual differences in judicial decisions. Here, gender will refer to women and men, synonymous with biological sex, due to limited research outside of this binary.

II. Affirmative action contradicts the core US social belief of meritocracy by undermining one’s sense of genuine achievement and perpetuating deficit discourses of incompetence around women.

III. A deviation from patriarchal values in the judiciary, as opposed to exclusively focusing on the justices within the system, is necessary to promote social justice.

I. Dichotomous construct of genders: Exacerbating stereotypes

Viewing the US Supreme Court as a dichotomous composition of men versus women neglects the idiosyncrasies between individuals. This reduces justices to their stereotypical characteristics, such as men being more assertive and competent and women being more emotionally sensitive (Hentschel et al., 2019). These overgeneralisations stem from the confines of hegemonic masculinity, whereby men must be socially dominant over others to sustain authority (Connell & Messerschmidt, 2005), and hyperfemininity, wherein women conform to exaggerated feminine gender roles (Murnen & Byrne, 1991). Individual idiosyncrasies of judges poses the question: “Should justices all be impartial without a shadow of personal bias?” In an ideal world, absolutely. However, we must acknowledge that bias is unavoidable, and that judicial systems should encompass diverse beliefs to avoid prejudice. Much like the relationship between error and mistake– we strive to avoid mistakes by minimising error, just like we attempt to eradicate prejudice via rejecting non-realistic overgeneralisations about people.

Women in broader society are undoubtedly a distinct group. However, in the context of the Supreme Court, political affiliation accounts for judicial outcomes, rather than gender. The impact of political beliefs extends beyond an individual level to collective judicial decisions through a conformity effect, as the number of judges from one political affiliation increases, the entire panel are more likely to vote in adherence with that ideology (Landes & Posner, 2009). While women have been found to be more liberal than men in selective circumstances like obscenity and death penalty cases (Songer & Crews-Meyer, 2000), research encompassing a wider policy range (civil liberties, criminal, equality, and private economic) found that differences in judicial decisions depended upon political affiliation rather than gender (Johnson & Songer 2009). A pertinent example in the Supreme Court is the case of Roe v. Wade (1973), where a Texas woman challenged state law criminalising abortion except in life-threatening situations. The decision in favour of the woman on an all-male panel (Oyez, n.d.) supports that political tendencies override justices’ gender, as individual attitudes mean men are not confined to stereotypically patriarchal beliefs. Conversely, the overturning of this case in 2022 saw a female justice voting against the constitutional right to abortion (Dobbs v. Jackson Women's Health Organization, 2022), despite contradicting arguments that female judges influence male colleagues to support more liberal positions (Songer & Crews-Meyer, 2000). Appointed by President Donald Trump, Associate Justice Amy Coney Barrett holds highly conservative Republican and Catholic values (Oyez, n.d.), highlighting individual beliefs beyond justices’ archetypal gender expectations. Despite increasing female representation in the US Supreme Court over time, this case represents a regression of social justice values. Evidently, men do not unanimously become indifferent to women’s rights, whereas some women oppose bioethical issues like abortion due to values independent of their gendered expectations.

Ultimately, the blanket sentiment that justice would be better served if more justices were women does not stand due to disregarding individual differences. Dichotomous gendered stereotypes assume justices to play into a static social construct, exacerbating bias so as to nurture discrimination. Counterintuitively, increasing the number of women in the Supreme Court would disallow advancements in social justice by perpetuating prejudicial preconceptions that men and women hold dialectically opposing values dictated by their gender.

II. True justice, not just numbers: Examining the impact of quotas on Supreme Court's meritocracy

Despite the irrelevance of gender in judicial decisions, it is arguable that women should be added into the US Supreme Court to symbolise gender justice. A popular approach to achieve this is via “affirmative action,” a mechanism originally introduced by 35th US President, John F. Kennedy, hoping to ensure equal treatment of applicants regardless of demographic factors (AAAED, n.d.). It attempts to empower socially disadvantaged groups experiencing long-lasting stigmatisation.

Regarding Supreme Court justices, affirmative action would add women in hopes of establishing female influence in legal spheres and combating pervasive stereotypical feminine occupations like secretaries, housekeepers or nurses (Gettys & Cann, 1981). Rather than remedying against sexism, affirmative action naturally intensifies stereotypes through engendering deficit discourses, namely language that represents a group through deficiency – “lack, absence, failure” (Lovell, n.d., p. 1). By compromising the key American social belief of meritocracy, deficit discourse risks imposing a saviour complex upon those considered ‘inferior’. To illustrate the self- and externally-imposed deficit discourse arising from affirmative action, a meta-analysis of 52 studies involving 6,432 individuals in the broader employment context found that affirmative action recipients are often viewed as less competent by both others and themselves (Heilman, 1994), engendering feelings of self-doubt. Similarly, they are viewed as competitors for company resources, making them less liked by co-workers and leading to negative performance evaluations (Leslie et al., 2013).

To illustrate an example of affirmative action using race in the Supreme Court, Justice Clarence Thomas is a key beneficiary due to his African-American heritage (Bella, 2023). However, his statement at his confirmation hearing in 1991 that affirmative action undermines the ‘self-esteem and self-respect’ of its recipients (Anderson, 2023) illustrates its deprecating effects. In the 2023 ruling against Harvard’s affirmative action policy regarding race, Thomas asserts that the metric of race is ‘overinclusive’ as it overlooks other influential factors like socio-economic background (Students for Fair Admissions v. Harvard, 2023). These problems would similarly apply to policies surrounding gender that lead to women’s merits being misattributed to affirmative action by both the public and herself, jeopardising her image for competency to serve the “public good” and denying women’s efforts to achieve meritocracy.

Upon considering how affirmative action further undermines meritocracy, people who claim to be more meritocratic and less prejudiced engage in subconsciously discriminatory behaviours– a phenomenon known as moral credentialing (Monin & Miller, 2001). At an organisational level, this is known as the paradox of meritocracy, whereby in organisations outwardly showcasing beliefs in meritocracy, managers are found to favour male employees over their female counterparts despite equal qualifications (Castilla & Benard, 2010). The inefficacy of affirmative action arises from one’s false self-perception of holding inclusive beliefs, which prevents them from suppressing subconscious prejudices that result in sexist behaviours (Monin & Miller, 2001). In the Supreme Court, this would result in overlooking discriminatory behaviours that arise from collective ignorance to the institution’s inadvertent sexist values via the paradox of meritocracy. Overall, adding women to the Supreme Court via affirmative action would curtail justice rather than ameliorating the “public good”.

III. Change of patriarchal values in the judiciary: The underlying intentions of this issue

Fundamental causes of judicial inequality stem from patriarchal values in the wider system, practised by both men and women, as opposed to the mere composition of genders in the judiciary. The status quo of the judicial sphere is male-centred: Judges who use more gender-stereotyped language tend to vote more conservatively in cases involving women’s rights; are more likely to reverse lower-court outcomes decided by women than men; are less likely to assign opinions to female judges; and cite fewer female-authored opinions (Chen et al., 2020). Evidently, even if a progressive female judge was introduced, her ability to promote equality would be impeded by the entrenched, systemic patriarchal values. The notion that the effectiveness of justice is determined by overarching ideologies, specifically patriarchy, is reaffirmed by the finding that as systemic patriarchal values decreased over time, favourable outcomes for female assault victims increased (Cassidy and Trafimow, 2002). Thus, reducing patriarchy at a structural level enhances the service of social justice and gender equality, whether it be as a victim of a crime or as a justice on the bench.

One may contend that increasing the number of women in the Supreme Court will symbolically diminish patriarchy through representation in number. However, adding women at the highest levels would not instigate ideological change, as judicial opinions are largely framed by beliefs in the wider legal community. Despite the record high female representation on the Supreme Court bench, 65.9% of interruptions are towards female Supreme Court justices by male co-workers and legal advocates (Jacobi & Schweers, 2017). In judicial campaigns, female candidates conform to existing patriarchal values by emphasising masculinised characteristics like intelligence and diligence when competing against men, yet highlight their experience when running against other women (Walsh et al., 2016). Undoubtedly, the underlying values of judiciary favour traditional masculine traits which women adopt to compensate for the gendered power imbalance. Rather than an issue with the number of female justices on the bench, systemic disrespect for women remains unchanged until the fundamental male-dominated values underpinning the judiciary are eradicated.

Conclusion

As the “first virtue” of a society, we must wholeheartedly embrace justice– a universal key of meritocracy that unlocks opportunity irrespective of demographic background, to promote the benefit of the public. While affirmative action seemingly possesses potency to address hindrance from this common wish, it overlooks the underlying causes of power discrepancy. In the context of increasing the number of women in the Supreme Court judiciary, we witness the superficial effects it would lead to, from establishing an adverse dichotomy between men and women to the emergent deficit discourses resulting in questions around competency. We consequently identify the real cause of judicial inequality– patriarchy. There is no universal panacea for such a pervasive, multifaceted problem arising from society’s inherent power inequalities. Though I am in no position to define a universal remedy, I invite us to consider the extent to which we become oblivious to moral credentialing in an effort to achieve equality. Are we, despite having a dire cause of social injustice at hand, refusing to provide a grassroots solution to such a problem for the discomfort that may arise from jeopardising our own interests, and opting for a shallow gesture to avoid the burden on our morality? Ultimately, despite the Supreme Court embodying the “public good”, justice will never be better served in the US if more Supreme Court justices are women until unjust values permeating the system are abolished.

References

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