Who Shapes the Law? Gender and Racial Bias in Judicial Citations

In this letter, we assess whether the contributions of judges from underrepresented groups are undervalued or overlooked, thereby reducing these judges’ influence on legal policy. Drawing on an original dataset of discretionary citations to over 2,000 published federal appellate decisions, we find that the majority of opinions written by female judges receive less attention from other courts than those by similarly situated men and that this is largely attributable to disparities in citing Black women and Latinas. We also find that additional efforts by Black and Latinx judges to ground their opinions in precedent yield a much lower rate of return in subsequent citations by outside circuits than comparable work by white men and women judges. This suggests that, despite gains in diversification in the federal judiciary, stereotypes about social identities will play a powerful role in determining whose ideas receive recognition.

[1]  R. Christensen,et al.  ‘All eyes are on you’: Gender, race, and opinion writing on the US Courts of Appeals , 2021, Law & Society Review.

[2]  R. Hinkle.  How policy influence varies with race and gender in the US courts of appeals , 2021, Research & Politics.

[3]  R. Christensen,et al.  Status characteristics and their intersectionality: majority opinion assignment in state supreme courts , 2020, Politics, Groups, and Identities.

[4]  Daniel A. McFarland,et al.  The Diversity–Innovation Paradox in Science , 2019, Proceedings of the National Academy of Sciences.

[5]  M. J. Nelson,et al.  The Intergroup Foundations of Policy Influence , 2018 .

[6]  D. Pager,et al.  Meta-analysis of field experiments shows no change in racial discrimination in hiring over time , 2017, Proceedings of the National Academy of Sciences.

[7]  D. Songer,et al.  The View from the Bench and Chambers: Examining Judicial Process and Decision Making on the U.S. Courts of Appeals , 2014 .

[8]  M. Sen,et al.  How Judicial Qualification Ratings May Disadvantage Minority and Female Candidates , 2014, Journal of Law and Courts.

[9]  Katherine L. Milkman,et al.  Temporal Distance and Discrimination , 2012, Psychological science.

[10]  Rebecca D. Gill,et al.  Are Judicial Performance Evaluations Fair to Women and Minorities?: A Cautionary Tale from Clark County, Nevada , 2011 .

[11]  R. J. Hume.  The Impact of Judicial Opinion Language on the Transmission of Federal Circuit Court Precedents , 2009 .

[12]  Stephen Choi,et al.  Bias in Judicial Citations: A Window into the Behavior of Judges? , 2008, The Journal of Legal Studies.

[13]  Timothy J. Dowd,et al.  Legitimacy as a Social Process , 2006 .

[14]  Donald R. Songer,et al.  Making Law in the United States Courts of Appeals , 2003, The Journal of Politics.

[15]  Michael E. Solimine,et al.  Judicial Influence: A Citation Analysis of Federal Courts of Appeals Judges , 1998, The Journal of Legal Studies.

[16]  M. Biernat,et al.  Gender- and race-based standards of competence: lower minimum standards but higher ability standards for devalued groups. , 1997, Journal of personality and social psychology.

[17]  C. Ridgeway,et al.  The Social Construction of Status Value: Gender and Other Nominal Characteristics , 1991 .

[18]  Joseph Berger,et al.  Expectations, legitimation, and dominance behavior in task groups. , 1986 .

[19]  J. Berger.  Status Characteristics and Social Interaction: An Expectation-States Approach , 1976 .

[20]  N. Ellemers.  Gender Stereotypes. , 2018, Annual review of psychology.

[21]  J. Segal,et al.  The U.S. Courts of Appeals , 2005 .

[22]  Laurie A. Rudman,et al.  Implicit and Explicit Attitudes Toward Female Authority , 2000 .

[23]  J. D. Fischer.  Portia Unbound: The Effects of a Supportive Law School Environment on Women and Minority Students , 1996 .

[24]  Joseph Berger,et al.  Status Characteristics and Social Interaction , 1972 .