The diversity of lack thereof in the federal court system, especially the Supreme Court, has been a concern for some time. The 6th (OH) and 9th (CA) circuits have the most diverse courts and the 1st (MA) and 8th (MO) have the least. See the map for the percentage of judges appointed by Democratic and Republican presidents.
The lack of women in federal appeals courts throughout American history is well documented. Prior to 1980, fewer than five women served on the courts of appeals. The first woman, Florence Ellinwood Allen (1884-1966), served as an active judge on the Court of Appeals for the Sixth Circuit from 1934 until 1959. She continued serving with senior status until her death in 1966. Ruth Bader Ginsburg’s appointment to the District of Columbia Circuit in 1980 by President Carter made her only the second woman to serve on that court. Only forty-eight women served on the courts of appeals from 1925 to 2002. This sex disparity continues to the present day: As of 2020, only 27% of all federal judges are women. Most of these female judges were appointed during the Carter, Reagan, H.W. Bush, and Clinton administrations.
The researchers wanted to see if the earlier cohort of women judges ruled and acted differently than the later cohort. Indeed they did. The women were divided into groups by whether they were pre “The Feminine Mystique” book written by Betty Friedan in 1963 that challenged the idea that women’s fulfillment is solely from being married and having a family. It’s shocking that some are still arguing that today.
It appears that women who were appointed to the court before 1963 were more liberal possibly because they had to fight through the discrimination against women. Women appointed since are a victim of our own success in that they didn’t suffer as much discrimination so don’t see the need to stand up to it. On the other hand, some of the older judges accepted the discrimination because that’s just the way it was. When the number of women on a court reaches a critical mass, then they speak and argue more and write more concurrences and dissents.
There were 42 of the older cohort women defined as born before 1950 (that would fit me) in the study including Sandra Day O’Connor and Ruth Bader Ginsberg. Judges who graduated from law school between 1957-1975 (fits me) were more likely to rule for the plaintiff in sex discrimination cases. They had fought hard and broken with tradition and even though many were Republicans, they rejected the stereotypes of women. The other group were what the researchers called the post-mystique group i.e. female judges who underwent puberty after 1963. They faced less hostility and discrimination.
The probability of a liberal decision improves by nearly ten percentage points from the younger cohort to the older. Not only are post-mystique female judges less likely to rule in a liberal direction, but interestingly male judges in those courts are more likely to vote in a liberal direction.
Liberal decisions are significantly less likely in the courts of appeals during the post-Carter period compared to the pre-Carter period. This is the beginning of the Reagan effect when the U.S. turned rightward again. In the post-Carter era, the probability of a liberal decision drops seven percentage points, from 43% to 36%.
There is a roughly 40% probability that a judge will vote in a liberal direction when the judge is male or a pre-mystique female judge. However, for a post-mystique judge, the probability of a liberal decision drops from 40% to 29%, all else equal. Obviously the “liberal” causes never did have a very good chance in court at all but less of a chance as time goes by and the older women judges retire or die. Part of the reason can be that the conservative presidents appointed more judges than the liberal presidents.
As you can see the courts never were and still aren’t liberal. The Supreme Court had a few golden years with the Warren court but that is the first and last time.
The researchers expected more women judges would make for more non-unanimous decisions and more written dissents. That did occur which is not a surprise when more women are introduced into an institutional environment historically dominated by men. Some courts did not even have women’s bathrooms. Presumably the younger judges have learned it’s all right to disagree with a man and to speak up.
The good news is that having more women on the court leads to a greater likelihood that a judge votes in a liberal direction. When there are no female judges on an appeals court, the probability of a liberal vote is approximately 40%. That probability rises steadily as female judges are introduced into the court. The probability rises to 43% when six women are added to the court. Finally, it is close to 47% when there are ten women on a court. Still we don’t have a 50/50 chance.
The conclusion is that the younger generation of American female judges are having a more conservative influence in the outcome of panel decisions unlike the older generation of female judges. This is not unlike earlier findings that we had hoped to see women lawyers change the law, but in fact, the law changed the women.
More than 50% of individuals entering law schools in the U.S. in 2021 were women according to information supplied by the American Bar Association website. This is a big change from the time when Ruth Bader Ginsburg attended law school during the 1950s and was one of only nine women in a class of 500. In my class of 300, I was one of 30. The previous year, there were only 8 of 300. I suspect that the women of that earlier time when it was so difficult to get in were fighters because if we were the type to give up, we would not have gotten there. Today they don’t have to fight to get in. They just have to be smart.
A similar trend was found in a study of the Congressional Black Caucus. Those who arrived recently vote differently than those who arrived before especially during the Civil Rights Movement. Again victims of their own success, they voted more for their own district’s interests than the overall interest of the larger Black community.
This is what happened in abortion as well. For 50 years women grew up with birth control and abortion and forgot or never knew the fight it took to get it and how easily it can be taken away. Teaching women’s history and Black history is vitally important precisely so we don’t forget and never drop our guard.