In the APSA Public Scholarship Program, graduate students in political science produce summaries of new research in the American Political Science Review. This piece, written by Irem B. A. Örsel, covers the new article by John Szmer, University of North Carolina at Charlotte, Laura P. Moyer, University of Louisville, Susan B. Haire, University of Georgia and Robert K. Christensen, Brigham Young University, “Who Shapes the Law? Gender and Racial Bias in Judicial Citations.”
Many people have supported diversity in various fields, including the judiciary, to benefit from diverse voices and perspectives.
Behind this is a belief that different backgrounds, experiences, and identities foster fairness, fortify legal frameworks, and lend credibility to judicial decisions. However, realizing this vision necessitates representation or recognition. Justice Sonia Sotomayor noted once, “If you are a person of color, you have to work harder than everybody else to succeed.” Then, the question arises: does more diversity inherently mean more representation and recognition?
In a recent letter published in APSR, John Szmer, Laura P. Moyer, Susan B. Haire, and Robert K. Christensen investigate this question. They argue conventional ideas on social identities significantly impact decisions about who has recognition and can affect legal policy in the judiciary. To examine this issue, the authors explore how gender and race affect discretionary judicial citations. Judicial citations are a common indicator of judges’ recognition within the legal system, signifying that a judge’s rulings and interpretations are impactful and respected, and serve as authoritative references in future legal cases, scholarly writings, and court decisions, providing justifications. Therefore, citations are acknowledgments of a judge’s influence and recognition in the legal field, playing a pivotal role in shaping norms and policies.
In their letter, the authors underscore disparities in citation counts between male and female judges, presenting notably fewer recognitions for women, and significantly fewer for Black women and Latinas, despite opinion quality.
They examine an original dataset of 2,228 published decisions between 2009 and 2016, drawn from a sample of 30 published U.S. Courts of Appeals decisions per circuit, exploring the frequency of references to these opinions by other judges over five years. They specifically looked at the background of the opinion authors, determining whether they were female or non-white, and assessed how well these opinions aligned with existing law. Uniquely, they focus on discretionary citations. But what are those?
In the U.S. legal system, the main expectation is that a judge should reference previous judicial decisions when deciding current legal cases. One such reference is a binding citation or precedent, implying a past decision must be followed by the court of the same or lower level, within the same jurisdiction. Another is a discretionary, or persuasive citation, indicating that the past decision can, but is not required to, be followed; it is at the judge’s discretion to cite a case as a nonbinding opinion. This choice is significant as voluntary citations may reveal disparities in citation counts between female and male judges.
The authors find that the opinions by female judges, specifically Black women and Latinas are cited less by other courts compared to those by white men, implicating a persistent undervaluation of their contributions to the legal field. For instance, the gap accumulates significantly over a career bringing 120 more citations to male judges than female judges in 10 years of full-time service. For the same period, this gap is even larger for Black women and Latinas, receiving approximately 239 fewer citations.
“Essentially, their study implies crucial awareness of disparities and their extensive impacts on legal policies and norms and the journey toward a more inclusive, equitable judiciary.” Further, the authors clarify that regardless of the notable additional efforts by Black and Latinx judges to make their opinions more grounded in precedent, these efforts do not translate into a comparable rate of citations by outside circuits as those seen with white men and women judges. Additionally, they highlight that as the judiciary is getting more diverse, there is improvement in the citation discrepancy between white men and women judges, but the gap does not seem to be getting better between Black and Latinx judges and white men.
But why do women judges, specifically Black women and Latinas, receive less recognition than men?
Although the authors do not directly focus on this question, they suggest several possible explanations. Their findings point to implicit bias in the legal field, implying a crucial correlation between racial and gender identities and stereotypes about competence, status, and authority. Another explanation is the systematic devaluation and insufficient diversification in the judiciary, even with incremental gains in diversity. However, the authors stress the need for further research and a closer look at socialization processes to foster equitable outcomes.
The significance of this work lies in its unique focus on all legal issues and attention provoked by judges’ work. They also mention parallel findings with other settings, such as academia, stating that APSA Citation reports verify the same gap for women and men. Essentially, their study implies crucial awareness of disparities and their extensive impacts on legal policies and norms and the journey toward a more inclusive, equitable judiciary. It confirms that, as Justice Sotomayor stated, working harder may not suffice to overcome systematic bias, emphasizing the persistent undervaluation of judicial opinions penned by women of color.
- Irem B. A. Örsel is a Ph.D. student in Political Science at Tulane University. She holds a Bachelor’s in Philosophy from Middle East Technical University (Turkey) and a Master’s in Political Science from Eastern Illinois University. Her primary research interests are comparative political behavior, populism, judicial behavior, and computational social science methods. She focuses comparatively on Central and Eastern Europe, Middle East, and the United States of America. Irem is a first-generation student and an advocate of public service and public scholarship.
- Article details: SZMER, JOHN, LAURA P. MOYER, SUSAN B. HAIRE, and ROBERT K. CHRISTENSEN. 2023. “Who Shapes the Law? Gender and Racial Bias in Judicial Citations.” American Political Science Review
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