Judge Gender, Critical Mass, and Decision Making in the Appellate
Courts of Canada
Donald R. Songer
Department of Political Science
University of South Carolina
Columbia, SC 29208
Email: dsonger@sc.edu
Phone: 803-777-6801
Susan W. Johnson
Department of Political Science
University of North Carolina, Greensboro
Greensboro, NC 27402
Phone: 336-256-0512
Email: swjohnso@uncg.edu
Nadia A. Jilani
Department of Political Science
University of South Carolina
Columbia, SC 20208
Email: jilani@mailbox.sc.edu
Phone: 803-777-7378
Abstract
According to Justice Bertha Wilson, there is “overwhelming evidence that gender-based
stereotypes are deeply embedded in the attitudes of many male judges” and that “gender
difference has been a significant factor in judicial decision-making”. Unfortunately, Justice
Wilson’s observation has been subjected to few empirical tests. At the same time, scholarship
suggests that in other contexts (e.g., legislatures), the presence of a “critical mass” of women may
be necessary before substantive gender based differences emerge. It is important to know whether
these gender differences do exist and whether they only appear after a “critical mass” of women
have been appointed because an implicit premise in the argument for affirmative diversification
in elite appointments is that gender matters substantively. We seek to explore the validity of these
assumptions by analyzing the votes of judges in the Supreme Court and the provincial appellate
courts of Canada. Canada provides an ideal setting to explore these questions because since the
early 1980s female representation on appellate courts has gone from virtually non-existent to 44%
on the Supreme Court and over 50% on some appellate courts. We propose to test whether there
are gendered patterns of voting, and if so, whether such patterns appear only after a critical mass
is reached, using a logistic regression model of the differences in the voting behavior of male
versus female justices, using the universe of Supreme Court votes from 1982 through 2007 and a
sample of the votes of judges on the provincial courts of appeal. Our analysis then comes to the
conclusion that supports previous research into gendered voting; namely that women vote more
liberally on civil rights and equality as well as private economic cases, and more conservatively
on criminal cases. However, we find no evidence that indicates a need for women judges and
justices to be accompanied by other female colleagues for them to vote sincerely.
Introduction
1
The first female U.S. Supreme Court justice, Sandra Day O’Connor, once
remarked that “there’s simply no empirical evidence that gender differences lead to
discernable differences in rendering judgment” (Woodruff 2003). On the other hand,
Bertha Wilson, the first female appointed to the Supreme Court of Canada, remarked that
there is “overwhelming evidence that gender-based myths, biases, and stereotypes are
deeply embedded in the attitudes of many male judges” and that “gender difference has
been a significant factor in judicial decision-making, particularly in the areas of tort law,
criminal law, and family law” (Wilson 1990, 512). Justice Wilson’s view illustrates the
“different voice” theory of female decision-making, the theory that women view the
world differently from men, and that female judges often bring this alternative
perspective to bear on the cases they decide (Wilson 1990). She argues that the addition
of more women to the bench could make a difference in the law, if “women judges,
through their differing perspectives on life, can bring new humanity to bear on the
decision-making process” (Wilson 1990, 522). Former Canadian Supreme Court Justice
L’Heureux-Dube agrees and points to her own opinions as evidence. In R v. Seaboyer
2
she argued in dissent that the “rape-shield” law under consideration was the product of
decades of myths and stereotypical thinking about sexual assault. Similarly, in Symes v.
Canada,
3
she disagreed with her male colleagues about what constituted a valid business
expense in income tax law. She argued that the provisions were based on the experiences
of male businessmen and neglected to consider the experiences of professional females
(L'Heureux-Dube 1997).
Debate about whether there are any basic differences in the approaches to
decision making between male and female judges is further complicated by disagreement
over the extent to which differences in the judicial context may facilitate or constrain the
expression of such differences. In particular, some scholars have suggested that gender
differences are unlikely to be expressed when there are only “token” numbers of women
on a given court; instead the argument is sometimes made that a “critical mass” of
1
1
The authors gratefully acknowledge the support of the National Science Foundation of the US and the
Canadian Embassy to the United States for their support that made this research possible. The
interpretations of the data and the conclusions are of course the authors and are not endorsed by either the
National Science Foundation or the Canadian Embassy. Grant support for the coding to 1946 was provided
by the Canadian Embassy's Canadian Studies Research Grant Program. Three grants contributed to this
project, 1) "An Institutional Perspective to Supreme Court Decision Making in Canada and the United
States," Susan W. Johnson, principal investigator; 2) “An Empirical Analysis of Decision making in the
Supreme Court and Courts of Appeals; of Canada and the United States,” Donald R. Songer, principal
investigator; and 3) “Reconceptualizing the Role of Precedent in the Supreme Court of Canada” ,” Donald
R. Songer, principal investigator. Much of the statistical analysis in this book was based on The High
Courts Judicial Database (HCJD). The HCJD is a public access database created by Stacia L. Haynie,
Reginald S. Sheehan, Donald R. Songer, and C. Neal Tate with the support of grants provided by the Law
and Social Science Program of the National Science Foundation (NSF). These data were collected under
two grants funded by the National Science Foundation, “Collaborative Research: Fitting More Pieces into
the Puzzle of Judicial Behavior: a Multi-Country Database and Program of Research,” SES-9975323; and
“Collaborative Research: Extending a Multi-Country Database and Program of Research,” SES-0137349,
C. Neal Tate, Donald R. Songer, Stacia Haynie and Reginald S. Sheehan, Principal Investigators. It is
available for public use and download at
http://sitemason.vanderbilt.edu/site/d5YnT2/data_sets.
2
(1991) 2 S.C.R. 577.
3
(1993) 4 S.C.R. 695.
women must be reached before gender differences have significant effects. (Allen and
Wall 1993, Manning and Carp 2005, Peresie 2005, McCall 2002)
In the remainder of this paper, we build on existing studies of the effect of judge
gender on decision making in appellate courts. While it is clear that the gender of judges
may matter for a number of reasons, both substantive and symbolic, we focus on the
potential substantive effects of judge gender on decision making. The analysis proceeds
in two stages. First we attempt to replicate existing studies suggesting that there are
significant differences between the voting patterns of male and female judges. We then
extend the analysis to explore the extent to which gender specific voting patterns depend
on the number of colleagues of the same gender a judge sits with on their court. We
explore these potential gender differences by analyzing the votes of judges in the top
appellate courts in Canada. These appellate courts provide an ideal setting in which to
test for the effects of a critical mass on gendered voting because the gender
diversification of the courts has proceeded rapidly over the past 30 years, going from
virtually no female representation in any appellate court before the adoption of the
Charter of Rights to the current diverse environment in which women constitute over
40% of the justices on the Supreme Court and the courts of appeal in Alberta and British
Columbia.
The Increasing Gender Diversification of Canadian Courts
Beginning with the appointment of Justice Wilson in 1982, a total of seven
women have served on the Supreme Court of Canada (see Figure 1). Currently, four of
the nine justices (44%), including the chief justice, are women. At the appellate level
immediately below the Supreme Court, women served on nine of the eleven provincial
courts of appeals by 1997. On six of those courts, women comprised at least a fifth of the
membership by the turn of the century and on the Court of Appeal of Alberta, fifty
percent of the seats were held by women (Greene, et. al. 1998, 25). Currently, women
constitute 47 % of the judges on the court of appeal in Alberta, 45% of the judges in
British Columbia, 33% in Ontario, 30% of the judges in Quebec, and 22% of those in
New Brunswick.
Theoretical Explanations of Gender Differences
With the recent additions of female jurists to Canadian and other common law
courts, researchers have identified several theories regarding their likely impact on the
bench. The scholarship on the impact of gender in U.S. courts has generally produced
mixed results. Studies of role theory have attempted to determine whether female judges
act as representatives of their respective groups in their decisions (Allen and Wall 1993;
Martin 1993a; Segal 2000a), whether they act as tokens by making a conscious effort to
vote in agreement with their male counterparts (Allen and Wall 1993), whether they act
as outsiders who are more liberal in decisions across all issue areas (Abrahamson 1993),
or whether they behave in such a way that can be construed as a “different voice” role
(Aliotta 1995; Davis 1993; Martin 1993b; Sherry 1986; Segal 2000b, Ostberg and
Wetstein 2004)
In comparing gender behavior on Canadian appellate courts, we take a slightly
different approach. Rather than assessing each role theory separately, we look at the
substantive differences female justices may make in deciding case outcomes, but we also
assess whether a “critical mass” of females is necessary in order to see substantive policy
differences.
Previous Empirical Analyses of Gender Differences
Scholars who have studied the effects of diversification of appellate courts have
arrived at mixed results. In the U.S. Supreme Court analyses of O’Connor’s voting
behavior failed to provide much support for the position that her decision making is
distinct strictly because of her gender (Davis 1993; O'Connor and Segal 1990). Davis
(1993) and Aliotta (1995), however, found that O’Connor was more supportive of claims
involving equality than she was of claims brought against criminal defendants. Palmer
(1991), in contrast, concludes that O’Connor’s opinion writing provides only mixed
support for women’s rights and feminism. Preliminary research on U.S. Supreme Court
Justice Ruth Bader Ginsburg suggests that the voting behavior of the two female U.S.
Supreme Court justices is better explained by their political party affiliation than by their
gender (Songer and Clark 2002). However, one recent analysis finds that both of these
women are among the Court’s strongest supporters of sex discrimination claimants, even
though they differ markedly in other areas (Palmer 2002). One should be cautious when
drawing conclusions from these small-n studies of O’Connor and Ginsberg exclusively,
however these studies do provide the only assessment to date of gender effects in the U.S.
Supreme Court.
Studies of gender disparities in other appellate courts conducted on a larger scale
have been limited primarily to judicial behavior in the U.S. and generally produced
mixed results. Some studies provide evidence to suggest that the effects of gender will
vary across issues, and specifically that female judges are more likely to support
women’s rights claimants (Allen and Wall 1987; Cook 1981; Gryski, Main and Dixon
1986; Kuersten and Manning 2000; Martin 1993; Palmer 1991; 2002). One study of the
U.S. appeals courts found significant differences between male and female judges in
cases involving employment discrimination, but found no evidence of a gender effect in
obscenity and search and seizure cases (Songer, Davis, and Haire 1994).
In their analysis of criminal justice and civil liberties issues on state supreme
courts, Songer and Crews-Meyer (2000) found that women judges often took a more
liberal position than did their male counterparts, and that their very presence increased
the likelihood that male judges would also move toward the left. However, gender had
hardly any relevance for the voting behavior of Republican judges. Gender differences
were apparent only in the voting behavior of Democratic judges. Therefore, party
ideology as well as party selection could be a factor in the disparities among female
Republican and female Democrat judges (Songer, Crews-Meyer 2000).
The differences found in previous studies between male and female behavior tend
to be limited to appellate courts (see Johnson et. al 2008 and Manning and Carp 2005 for
an exception to this). One analysis of female decision making on the U.S. District Courts
found that female judges tend to be less supportive of personal liberties and positions
advanced by minority groups than their male colleagues (Walker and Barrow 1985). A
study of Clinton district judges similarly concluded that Clinton’s female appointees are
“no more likely to serve the policy interests of their own communities than are his …
male appointees.” (Segal 2000) A study also found no difference between male and
female judges in their consideration of criminal and women’s rights cases (Walker and
Barrow 1985). A more recent study of the U.S. district courts, however, found gender
differences to exist across a wide range of cases, but only within same party comparisons
of males and females (Johnson et. al. 2008).
