We examine the role of gender in legal decision making by applying critical mass theory to the U.S. federal district courts. We analyze whether behavioral differences manifest themselves in the decision-making proclivities of male and female judges, contingent on the existence of a critical mass of female judges at a court point (i.e., each city in which a district court is located). Our results indicate that women jurists exhibit distinctive behavior in certain cases when there is a critical mass of women at a court point. These differences are most significant in criminal justice cases; modest differences between men and women are also identified in civil rights and liberties cases. Gender is not significant in labor and economic regulation cases. These findings suggest that the increasing presence of women on the federal bench could have substantial policy ramifications in the American polity.

https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1467-9930.2010.00317.x

Gender, Critical Mass, and Judicial Decision Making

Clearly, if our objective is to assess how the quality of democracy is changing, a finer-grained analysis is required than that provided by the indices highlighted above. One means of achieving this is by conducting periodic democratic audits. Using a framework pioneered by Professor David Beetham, a democratic audit is a comprehensive and systematic assessment of a country’s political life undertaken to evaluate how well it corresponds to established international norms and standards. Since the early 1990s, the Joseph Rowntree Charitable Trust has financed four audits of democracy in the UK, with the latest, published in July 2012, evaluating change over a ten-year period since 2002. The assessment methodology for a democratic audit is based on the two basic principles of representative democracy, namely:

/pdf/how-democratic-is-the-uk-the-2012-audit-33deu7l4tb.pdf

How Democratic is the UK? The 2012 Audit:

The non-legal factors that influence judicial decisions, in cases which divide judicial opinion, have been the subject of extensive debate. To date, theoretical and empirical work has focussed on several factors including political ideology, activism, attitudes and demographics. Personal values are related to each of these factors and are central to decision making. This study translated theories and techniques from psychological research to examine the role of personal values in judicial decision making. 
Using a novel method of assessment of value expression in legal opinions, this study revealed a different pattern of values expressed in the majority and minority opinions of a case that divided the Supreme Court. The relationship between personal values and legal decision making was extended with data from an empirical study of legal academics which highlights the significant influence of personal values on legal decision making. 
This study translates psychological theory to legal practice. The value: decision paradigm provides a new framework to analyse judicial decision making, judicial division and the exercise of judicial discretion. The study also has significant implications in the current debates surrounding judicial diversity.

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The influence of personal values on legal judgments

The American jurist Louis Marshall (1856-1929) was widely regarded in his day as one of the country's most significant Jewish leaders. Rooted in the patrician and politically conservative "German Jewish" milieu of the post-Civil War era, Marshall was a prominent New York lawyer who played a highly public and frequently pivotal role as an advocate of legal protections for marginalized individuals and minority groups. Likewise, Marshall's stewardship of American Jewish affairs stemmed from a strong combination of self-interest and profound belief in American democracy. He was a formidable legal presence who demonstrated extraordinary juridical talent and an ability to access the levers of American judicial power. His dual role as a communal steward and commanding legal figure raises important historical questions. This article suggests that Marshall's activism and legal approach reveals a curious admixture of political sensitivities that became a hallmark of the American Jewish experience.

The Judicial Activism of

This article is concerned with the way in which ignorance is actively constituted orreproduced as an aspect of power. The significance of ignorance as an important siteof study is suggested in this article through an examination of the results of a surveyof applications by women for Silk, in recognition of senior status as an advocate, andjudicial office in Northern Ireland. The survey found that in the male-dominatedprofession of law more women than men were unsure of criteria for appointment.The survey revealed also a different perceptual world between male and femalelawyers and judges in terms of identifying disadvantage on the basis of gender. Malebarristers were twice as likely as female barristers to state that female barristers werenot under-represented in applications for Silk. None of the male judges acknowledgedthat the culture of the bench was male, while most women said it was. This survey issupported by analogous illustrations from other fields. The article concludes thatthe study of ignorance should be added to the field of vision of those working on theintersection of power/knowledge, and that identification of ignorance may requiredistinctive responses. The general observations in this article may be of relevance inother areas of anti-discrimination and equality law, policy and praxis.

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Understanding Disadvantage Partly Through an Epistemology of Ignorance

The judges of the High Court of Australia are appointed by the federal executive on the basis of 'merit' after an informal and secret consultation process. This system is anachronistic when compared with the judicial appointments procedures and ongoing reforms in other common law jurisdictions, and when considered against the minimum level of scrutiny and accountability now expected of senior appointments to other public institutions. It is also inconsistent with the role of the High Court in determining the law, including matters of public policy, for the nation as a whole. One consequence of the current system, including its reliance on the subjective concept of 'merit', is that, of the 44 appointments to the Court, only one has been a woman. The appointments process should be reformed to provide for the selection of High Court judges by the executive based upon known criteria after the preparation of a short list by a judicial appointments commission. Without this, the current executive appointments system threatens to undermine public confidence in the Court and the administration of justice.

Rachel Davis

Papers

Reform of the Judicial Appointments Process: Gender and the Bench of the High Court of Australia

Reform of the Judicial Appointment Process: Gender and the Bench of the High Court of Australia

A Century of Appointments But Only One Woman