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The Fairer SexWhat do we mean when we say we need more female justices?

By Dahlia LithwickPosted Saturday, April 11, 2009, at 7:18 AM ET

Former Supreme Court Justice Sandra Day O'Connor It's almost an article of faith among Supreme Court watchers that President Obama will fill the bench's next vacancy—and perhaps the one after that, too—with a woman. The current court's sole female member, Ruth Bader Ginsburg, has said she is "lonely" there, and even if she's not the next to step aside and another women joins her, that's still just two out of nine. Americans seem quite certain that isn't enough. Former Justice Sandra Day O'Connor, on learning in 2005 that John Roberts would take her place, declared him "good in every way, except he's not a woman." Americans concur. In a CNN/USA Today/Gallup poll taken just before Roberts was appointed, 80 percent of respondents said it was a good idea to replace O'Connor with a woman, and 13 percent said it was "essential." And with women claiming a large share of responsibility for Obama's victory over John McCain, the demand for a more gender-balanced court is stronger than ever.

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But why does Obama owe us another woman justice? Is it simply a matter of appearance? Is gender balance necessary for the court to have what political scientists like to call "social legitimacy"? Or is there something more fundamental that women bring to the bench—something about the way they decide cases—that makes the need for more of them so urgent?

Debate has raged for decades now about whether there is something unique about women's jurisprudence. A 1986 study of O'Connor's opinions published by professor Suzanna Sherry, now at Vanderbilt University, saw evidence there of a "feminine jurisprudence … quite unlike any other contemporary jurisprudence." Defenders of the notion of a woman's legal reasoning often build their case on the groundbreaking work of psychologist Carol Gilligan, whose 1982 book, In a Different Voice, claimed that female moral reasoning is fundamentally different. Men, the theory goes, prefer their law with rigid rules, clear lines, and neutral principles; women, meanwhile, want to look at the totality of the circumstances and apply broad discretion, preferring what Gilligan calls an "ethic of care" to an "ethic of rights."

So, for example, some of the different voice theorists would argue that O'Connor's preferences for flexible case-by-case standards in the context of abortion, or her concern for the uneasy nonbelievers in cases about public displays of religion, reflect a softer, more "relational" approach to the law, while Justice Antonin Scalia's emphasis on unchanging rules and crisp legal principles is, fundamentally, a guy thing. This is, of course, a rather broad-brush approach to both gender and judging, and some feminists object that it ultimately hurts women to talk of them in such gauzy generalities. Why perpetuate the idea that woman are all about tenderness and feelings while men are all about muscular rights?

Whichever side of the debate you espouse, the empirical studies on gender and judging have been almost completely equivocal so far. But in an award-winning 2008 paper titled "Untangling the Causal Effects of Sex on Judging," Washington University's Christina L. Boyd and Andrew D. Martin and Northwestern School of Law's Lee Epstein suggest that women judges really are different. Surveying sex discrimination suits resolved by panels of judges in federal circuit courts between 1995 and 2002, the researchers examined whether male and female judges decide cases differently, and went on to look at whether the presence of a female on a panel of judges affects the behavior of her male colleagues.

Here's what they found: The male judges were 10 percent more likely to rule against alleged sex-discrimination victims. And male judges were "significantly more likely" to rule in their favor if a woman judge served on their panel. Because Epstein, Boyd, and Martin were studying only sex-discrimination cases—situations in which gender is front and center—it's unclear whether their data would hold true in cases in which gender were beside the point. Still, an intriguing implication of this study is that male judges rule differently when they're sharing the bench with a woman. It may suggest female moral reasoning—if such a thing exists—might be contagious.