Although there has been appreciable growth in the number of women attending law school, with the American Bar Association (ABA) reporting in 2018 that women outnumbered men in law programs for the third year in a row (52.4 percent compared to 47.6 percent, respectively), the number of women holding leadership positions in the field has not kept pace. For example, women make up less than a third of all federal- and state-level judicial officers (Pisarcik 2019). These numbers are even lower regarding women of color, with less than 10 percent serving as judges on both the state and federal level (Jawando and Anderson 2016; National Women’s Law Center Fact Sheet 2016). Having disproportionately fewer female jurists can have severe implications in terms of cultivating a sense of democratic legitimacy in the judiciary, creating leadership opportunities for female judges and attorneys, and fostering occasions for mentoring and networking (Kenney 2013). A lack of women on the judiciary can also impact case outcomes. For example, Harding (1991) argues marginalized groups, such as women, can help create a more objective account of the world by pointing out patterns of behavior that the majority group does not recognize. All of these issues speak to why studying women in the legal profession, particularly the judiciary is still of significant importance.

Examining whether female judges adjudicate and behave differently than their male counterparts, and what impact (if any) this has on the legal system and society is still in need of further investigation. For example, Hunter (2015) notes that some anticipate little difference between male and female judges because they employ principles of judicial independence and impartiality, as well as gravitate to well-established legal norms. However, Boyd, Epstein, and Martin (2010) show that a presence of a female judge on a mostly male panel can be influential in rulings on sex discrimination cases due to their expertise, experience, or information on such a topic. It is important to continue to evaluate if there are any qualitative differences between male and female judges in order to more fully assess the value and perspective women jurists bring to the court system. An element that helps to assess this is related to what Carol Gilligan (1982) referred to as the “different voice,” and what has grown to be known as the “different voice debate.” This debate is rooted in the idea that women may be more likely to speak and respond from an “ethics of care,” and men from an “ethics of justice.” An ethics of care stems from prioritizing relationships, societal connections, and context. An ethics of justice focuses more on individual autonomy, choice, and competing individual rights (Botes 2000; French and Weis 2000; Gilligan 1982). However, building on Gilligan’s theory, Kraybill (2020) finds that female justices of the US Supreme Court use language associated with both an ethics of care and ethics of justice.

To give some additional context to the debate and how it frames this study, it is worthwhile to briefly highlight some of Gilligan’s (1982) work on the different voice, which included three interview studies: a college student population study focusing on self and identity, an abortion decision study, and a rights and responsibilities study with respondents ranging from ages six to sixty. Through her interviews, Gilligan states she observed two distinct voices in relation to judgment and action, with women’s voices being distinct and hence having a different style or tone. The disparities between women’s and men’s different experiences became apparent, largely due to the lack of women’s representation in theories of psychological development at the time and also because of the prevailing idea that male life is the norm and the default lens by which female development is viewed. Gilligan argues that this leads some to try to fit women into a more male conception of relationships or thinking, yet in her observations she finds that some women are more likely to consider moral problems in terms of care and responsibility to relationships as opposed to a more masculine outlook of prioritizing rights and rules. Of course, these arguments are not without critics: some have accused Gilligan’s work of reinforcing stereotypes about gender differences (Auerbach, Blum, and Williams 1985). However, this is despite Gilligan (1982) arguing that the different voice is “characterized not by gender but theme” and that “its association with women” is based on her observations and therefore is not “absolute” and that “the contrasts between male and female voices” are designed “to highlight a distinction between two modes of thought and to focus a problem of interpretation rather than to represent a generalization about either sex” (p. 2).

Over the last several decades, Gilligan’s framework of the different voice has been used to examine women in male-dominated professions, including the judiciary. This being said, some female judicial officers have critiqued the concept, including Sandra Day O’Connor, the first female justice of the US Supreme Court, who referred to the different voice debate as “dangerous and unanswerable,” arguing it not only treated women as a monolith but further dichotomized female and male virtues. Kenney (2013) also finds that women judges tend to reject this essentialist framing. As this debate continues today in examining male and female judges, most attention has been given to case outcomes. Though these analyses are insightful, they are missing information about how this debate and related issues might be viewed by judicial officers themselves. Therefore, this project looks to build on and expand the different voice debate by applying elements of the ethics of care and ethics of justice to how judges adjudicate and how they view various workplace experiences, and to issues of bias, via a survey analysis of California state judicial officers. This survey was conducted at various stages through 2019–20. Findings show that women have a heightened awareness regarding the different treatment that some females experience as judicial officers compared to their male counterparts. The results also suggest that female judges are more open to conducting a self-check on gender bias when adjudicating cases, are more likely to take into account an individual’s life circumstances, and agree that having more women and people of color on the bench is important for society.

The Importance of Gender and Justice

The Importance of Examining Issues of Gender and Diversity on the Bench

As Kenney (2013) discusses, courts are powerful institutions of government, entangled and weighing in on a variety of issues important to the public. Chief Justice John Roberts of the US Supreme Court echoed these sentiments when commenting on how the courts are seemingly “getting more and more involved in every aspect of society” (Bump 2019). In looking at the types of cases the federal and state court systems hear, it is apparent that many gender-relevant public policy issues such as reproductive rights, health care, and discrimination are inevitably judicialized. This judicialization of gender-related issues can become even more pronounced when looking at state-level courts, which exclusively deal with issues of family law such as custody and divorce and in terms of criminal law cases involving battery and rape (Kenney 2013; Silverman 2016). Thus as the power of the courts grows, and with the cases judicial officers adjudicate touching so many aspects of everyday life, who sits on the bench and how they adjudicate matters. This is of particular importance when looking at state courts, which deal with more than 95 percent of the nation’s legal cases and continue to be benched by primarily white male judicial officers. This gavel gap,^[1] which notes the disparity between those who sit on the bench and the makeup of the communities they serve, can foster a sense of distrust among the public toward the courts. Research shows that the lack of diversity on the bench can impact decision-making, since only a majority viewpoint is predominately represented (Chew and Kelley 2009; Florida State Courts 2008; Jawando and Anderson 2016). For example, regarding the decision of whether to incarcerate, Welch, Combs, and Gruhl (1988) find the presence of Black judges is likely to increase more equal treatment between Black and white defendants. Regarding the lack of well-represented women and minority judges in our court system, Navarro (2019) and Segal (2000) argue that in order to promote the public’s faith in the courts, the bench must be more reflective and understanding of the circumstances of the communities they work in.

The Different Voice Debate

As previously noted, scholars began to apply the different voice theory to male and female judicial officers, in order to assess if there were differences between them in terms of court case outcomes. As Kenney (2013) discusses, consistent differences between male and female judges have not been found. However, she does note that some studies find women appellate judges are more likely to rule for the plaintiff in sex discrimination cases and are also more likely to persuade their male colleagues on panels to vote with them. Songer, Davis, and Haire (1994) also find evidence of gender differences in sex discrimination cases. Moyer and Haire (2015) find that female judges who attended law school during a time of extreme gender inequality are more likely than their male counterparts to support plaintiffs in sexual discrimination cases. In examining divorce cases, Martin and Pyle (2005) discover that female judicial officers were more supportive of female litigants. They also found that when serving alongside one other female, male judges were more supportive of female litigants. Martin (1987) found that female judges were hesitant to embrace different voice arguments, although they were supportive of an increase in women judges, arguing that including them on the judiciary better reflects the fabric of society and that a woman and/or a feminist perspective can contribute to better decision-making. Again, in looking at how the different voice debate applies to opinions of the Supreme Court, Kraybill (2020) finds that male and female justices do employ different language styles and though female justices use rhetoric associated with the ethics of care, they were overall more likely to use words related to the ethics of justice compared to their male counterparts, thus varying from Gilligan’s thesis.

The work presented in this chapter builds on the existing scholarship by directly surveying judges on elements and additions of the different voice debate. Judges wield a lot of discretion over cases and the individual parties before them, which inevitably involves moral and ethical dilemmas, concepts central to Gilligan’s (1982) theory. As judges’ influence (particularly at the state level) grows, it is important to continue to evaluate how they may think and respond to related facets of the different voice theory. In doing so, we are able to gain more insight into how judges utilized their own experiences in adjudicating cases, as well as if male and female judges employ different ethical reasoning while rendering decisions. By examining a sample of judges in this context from the most populous and heterogeneous state court system in the country, California (California Courts 2020a), this chapter gives additional and new insight into the different voice and how this theory relates to issues of judicial behavior and diversity.

Research Questions and Expectations

In building on the scholarship noted above, this chapter puts forth several questions. The first question asks if female judicial officers are more likely than their male counterparts to feel that the legal profession is less welcoming to them. I expect female judges will express that the legal profession is less welcoming to them compared to their male counterparts. For example, previous studies have captured female judicial officers expressing how the legal profession is still dominated by male norms (Navarro 2019; Kenney 2013). Gilligan’s (1982) theory discusses how various fields of study have been primarily examined from a male perspective, perpetuating the exclusion of women. This question builds on the different voice theory by evaluating how women may feel upon entering a male-dominated profession, such as the judiciary.

The second question asks if female judicial officers are more likely to state that their life experience as women leads them to have a different perspective on the bench than their male counterparts. This question stems not only from Gilligan’s (1982) work, which identified some women having a different perspective due to their position as females in society and the socialization process, but also feminist standpoint theory (FST), which argues that one’s location and experience in society play a formative role in developing positions, opinions, and outlooks (Martin, Reynolds, and Keith 2002). Therefore, I expect female judicial officers will be more likely than their male counterparts to express that their experiences as women (i.e., mother, wife, and/or daughter) have given them a different perspective on the bench.

The third research question asks if female judicial officers are more likely to experience different treatment by other judges, attorneys, court staff, and the public than their male counterparts. Again, this expands Gilligan’s theory concerning the idea that if some women have a different perspective than their male counterparts when it comes to reasoning over ethical and moral dilemmas, that it is intuitive that they may also have a heightened awareness for when and if they are experiencing different treatment. Again, this is also connected to FST, which argues that women (and other marginalized groups) can experience different treatment than the majority group (Martin, Reynolds, and Keith 2002). Overall, I expect female judges will express that they have not been treated as well as their male counterparts on the bench—whether by the public, staff, other judges, and/or attorneys.

The fourth research question asks if female judicial officers are more likely to administer a self-check on bias compared to their male counterparts. Again, building on Gilligan’s (1982) theory that women can approach moral and ethical dilemmas differently from their male counterparts, along with her discussion on how women have been excluded from various professions and fields of study, I argue that this can create an increased awareness about discrimination among female judicial officers, causing them to more regularly administer a self-check on their bias when adjudicating cases compared with male judges. Issues of unconscious bias (social stereotypes individuals hold about certain groups of people that can form outside of their conscious awareness: see the University of California San Francisco Office of Diversity and Outreach) have been raised across a variety of professions and systems of government. Regarding the courts, some argue that the risk of not addressing unconscious bias is at the heart of why women or men may be treated differently in court proceedings, as well as harsher sentences being imposed on people of color as opposed to white people (Mitchell and MacKenzie 2004).

Finally, the fifth question asks if female judicial officers are more likely to express that it is important to have more women and people of color serving on the bench. Like the questions above, this point builds on Gilligan’s (1982) theory because it centers on how individuals, due to their different backgrounds, may represent and work through moral and ethical dilemmas differently. Again, since women (as a nonmajority group on the bench) may have more awareness of this, I expect that they will have a deeper appreciation for greater racial and gender diversity on the bench than their male counterparts.

These questions also relate to and build on the different voice debate as they touch on key elements connected to the ethics of care and ethics of justice. For example, some female judicial officers have expressed that when running for the bench they are viewed as more honest, fair, and nurturing than their male counterparts (characteristics related to the ethics of care). However, upon entering their judicial positions, some women express having their credentials questioned, along with commenting on the competitiveness and resentfulness they feel by some male judges (Navarro 2019). These questions also point to how female judges may take a more societal context in their behavior and reasoning than their male counterparts, which is in line with Gilligan’s discussion on the ethics of care and justice.

Methodology

The California state court system serves a population of over 39.5 million people, or 12 percent of the country’s total population (California Courts 2020a). Therefore, California judicial officers were chosen as the unit of analysis in an effort to draw responses from a wide pool of subjects who interact with one of the most diverse populations in the country (World Population Review 2020). In order to examine the research questions noted above, a survey was designed and first launched in February 2019 via an online link and available through the California Judges Association’s website, and subsequently the organization’s newsletter and magazine, the Voice. To ensure enough responses, a mailing list of California judicial officers was also compiled to administer the survey statewide. The mailing list was based on available judicial rosters throughout the superior courts in California. The hard-copy mailing went out to 1,904 available addresses in June of 2019 and responses were mailed back through January 2020. The total number of surveys received was 215 for a response rate of 11.29 percent.^[2]

Survey questions were designed based on a review of prior literature regarding the different voice debate, issues of gender and justice, the gavel gap, feedback from presentations given by the researcher on the topic, and discussions with retired judicial officers (not featured in the study). Survey questions related to the five research questions noted above, along with those that captured demographic data such as sex, age, race and ethnicity, religious background, political party identification, type of legal education, judicial appointment type, years of experience, primary area of practice, and years of legal experience. A table of descriptive statistics can be found in the appendix; this provides an overview of the sample, along with a coding scheme. In order to test the research questions and expectations laid out above, differences of means tests were conducted in order to compare male versus female judicial officers’ responses.^[3] Survey data results are usually considered significant when the probability (p-value) is at one of three levels: (1) p < .001***; (2) p < .01**; (3) p < .10*, with the first p-value range listed being the highest level of significance. These are the p-value levels/standards utilized in this chapter to assess levels of significance.

Findings

Sample Overview

As noted above, the sample consisted of 215 California state judicial officers, 90 percent of whom are superior court trial judges. The majority of respondents identified as male (60 percent) and female (40 percent). Most in the sample were white (73.95 percent), with only 10.23 percent identifying as Hispanic, 5.58 percent as Black, 6.51 percent as Asian, .93 percent as Native American, and 2.79 percent as other. These sex, race, and ethnicity demographics are fairly in line with the state’s most recent reports (California Courts 2020b). A majority of the respondents were over the age of 45, with 6.51 percent ranging from 35 to 45; 30.23 percent from 46 to 55; 34.88 percent from 56 to 65; and 28.37 percent over the age of 65. Most (92.52 percent) received their legal education through an American Bar Accredited (ABA) law school, with an average of 20.65 years of practicing law before serving on the bench (again, please see the appendix for a complete overview of the sample).

Difference of Means

How Welcoming Is the Legal Profession to Female Attorneys and Judicial Officers?

As noted above, the first research question examines how welcoming the legal profession is to female attorneys and judicial officers. This particular question was coded 0 = no (it is not welcoming), 1 = yes (it is welcoming), and 2 = no opinion (note, this latter option was coded as missing). Overall, 82.17 percent of respondents stated that the legal profession was welcoming to female attorneys and judicial officers, compared to 14.49 percent who responded “no,” and 2.80 percent who had no opinion on the question. The results of the difference of means test in figure 1 below show in a comparison of male and female judicial officers, that female respondents are slightly less likely to agree that the legal profession is welcoming to them (.8255 compared to men at .9218) and the results are significant at p = .08. These findings are consistent with expectations.

Building on this first question, a related issue in the study examines if respondents felt that women’s experience as wife, mother, and/or daughter led them to bring a different perspective to court cases and legal proceedings (coded 1 = yes and 0 = no). Overall, 91.47 percent of respondents stated “yes,” that a women’s experience does bring a different perspective to court cases and legal proceedings. However, counter to expectations, the difference of means tests show that there is not a significant difference between the judicial officers in the study regarding this question/issue (with a mean score of .9055 for men and .9285 for women and a p-value of .5594).

Again, though the difference of means tests was not significant with regard to this question, the narrative responses provide some interesting insight and implications to consider. For example, some respondents shared sentiments such as “women’s responsibility for child-rearing gives female judges and attorneys more patience and compassion,” “women bring intuition and a willingness to listen to all sides before reaching a decision,” “females have a better perception of gender-based issues,” “some female judges hear different things from criminal defendants,” “women have a broader concept of justice,” or “women round out the proceedings, bringing a perspective that men, and older men, do not have.” However, some respondents did express feelings such as “everyone brings a different perspective,” or “women do handle cases differently, but I do not think it’s based on being a wife, mother, or daughter,” and “each person regardless of gender brings their own experience to the bench.” Responses and comments indicating that a woman’s life experience brings a unique and different perspective are consistent with some who argue that women can bring a sense of “gendered sensibility” to judicial decision-making by considering their unique perspective as women and mothers, balancing work and family responsibilities, as well as dealing with sexism and discrimination (Hunter 2015; Hale and Hunter 2008).

Different Treatment of Female Judges and Attorneys

The third research question asked respondents if they have witnessed female judges and/or female attorneys being treated differently from their male counterparts, either by colleagues (i.e., other judges or attorneys), witnesses, members of the jury/jury pool, court staff, and so on (coded 1 = yes and 0 = no). Overall, 68.54 percent of respondents stated that “yes,” they had witnessed female judges or attorneys being treated differently from their male counterparts. In line with expectations, the difference of means tests in figure 2 shows that female judicial officers, in particular, were significantly more likely to state they had witnessed or experienced different treatment. For example, some shared that they have had their rulings questioned by fellow judges and attorneys, and overall they are not treated with the same level of respect as their male counterparts (with female respondents showing a mean score of .872 compared to .559 for males at a p-value of .000).

The difference of means tests above also suggests interesting implications. One theme that arises is that women tend to be more aware of different treatment based on gender and have a heightened sense of gender dynamics in their role as judge. When providing examples of the type of different treatment witnessed, 33 percent of respondents noted that either they themselves, or other female judicial officers, have had their professional title omitted, with attorneys, plaintiffs, defendants, and/or staff sometimes referring to them as “Miss” as opposed to “Judge” or “Your Honor.” Along similar lines, some female respondents stated, “men automatically receive more deference and are rarely misidentified.” Some discussed the reason for different treatment of male and female judicial officers can be related to “society not accepting female authority” and that “strict female judges can be viewed as aggressive or bitchy.” Other female respondents shared sentiments such as, “female attorneys treat female judges with less respect than they would a male judge.” A male judge echoed these comments by stating, “Female judges do not get the same respect as their male counterparts by other bench officers, attorneys, and staff. Female attorneys and staff have issues with a female being in a superior position.” However, some male respondents shared that they’ve seen bad treatment “happen to all genders,” or that treatment of women judges “improved in recent years,” or that they worked in “diverse communities and had seen males and females treated alike.”

Self-Check on Gender Bias

The fourth research question asked respondents if they administer a self-check on their own gender bias when making a ruling in a court case (coded 1 = yes and 0 = no). Overall, 77 percent of respondents stated “yes,” they do administer a self-check on bias, while 23 percent said they did not. The difference of means tests in figure 3 below show that female judicial officers were significantly more likely to state that they make an effort or have a self-check gender bias process when making a court ruling, with female respondents reporting a mean score of .853 and .685 at an overall p-value of .003.

It is also important to note that overall, 34 percent of the total respondents described their self-check bias process as “reversing genders and/or race” of the parties in a case. However, as the difference of means tests show, female judicial officers also responded at a higher rate that “yes,” they administered a regular self-check on potential bias, and these results were significant. Some female judges who also provided a narrative response to the question shared that they reverse the genders in family law and/or domestic violence cases so that they are not favoring the mother or woman by default. However, one female judge stated, “I check to make sure I am not biased against other women, in my experience women often can create more barriers for other women.” Others expressed that as mothers themselves, they can be harder on female defendants either in criminal court or in family law disputes. Although the results show more female judicial officers administered a self-check on bias, some women stated they did not, with one in particular sharing, “I don’t believe I have a gender bias, but this question alone makes me think maybe I should self-check anyway.” Several male judges also shared they did not conduct such a process, explaining that they “rely on the evidence to dictate the outcome” or that they “saw no reason for doing so.”

Is It Important to Have More Women and People of Color Serving as Judicial Officers?

The final research questions asked respondents if it is important to have more women and people of color serving as judicial officers. Regarding the issue of having more women serving as judicial officers, 89.57 percent of participants responded “yes.” Again, coded as 1 for “yes” and 0 for “no,” the results in figure 4 show that female respondents were slightly and significantly more likely to state it is important to have more women serving as judicial officers (.941 compared to .865 with a p-value of .0767), which is in line with expectations.

Regarding the question of whether it is important to have more people of color serving as judicial officers, 91.08 percent of respondents stated “yes.” Again, in line with expectations, the results of the difference of means tests show in figure 5 that female respondents were again slightly and significantly more likely to affirm this than their male counterparts (.9634 to .8828 with a p-value of .10).

In discussing why it is important to have a diverse bench in terms of sex, race, and ethnicity, a majority of respondents (60.46 percent) indicated that it promotes public trust in the judiciary and legitimacy in institutions of government, that women and people of color bring a different perspective to the bench, and that it is generally more representative of society. However, some respondents did add that “qualified” judges are what is needed, making comments such as, “These are all important considerations but of significantly less importance than intellectual capabilities, experience, and temperament; none of the latter qualities are gender- or race-based.” Others said what mattered most was that the “best person for the job” was appointed, elected, or hired. Some respondents expressed that it mattered more on a court-by-court basis, sharing, “You don’t necessarily need more women or people of color as judicial officers, it depends on the current make-up of the judicial district.”

Discussion and Implications

Overall, the findings demonstrate that some female judicial officers have different experiences on the bench compared to their male counterparts and that these differences can be related to gender dynamics within the institution and society and hence extended elements of the different voice debate. The results demonstrate that female judicial officers can contextualize their experiences differently due to their position as women, which gives them the potential to have a broader scope and style of jurisprudence; as some respondents stated, “women help to give form to the human, non-legal part of the job,” “have a more holistic viewpoint,” and may be “more flexible” and “sensitive” in dealing with parties in a case. Therefore, the results suggest some female judges can bring forth dynamics of the ethics of care as it relates to the different voice debate in court proceedings. As the first female Supreme Court Justice of Canada, Bertha Wilson, argued, women judges have the potential to bring a “new humanity” to court proceedings and can make a difference by viewing cases in terms of a larger societal picture and impact (Wilson 1990).

Furthermore, female judges were more likely to respond that having more women and people of color on the bench is important, compared to their male counterparts; both results were significant. Again, these findings demonstrate a pattern that may suggest that female judicial officers have not only faced experiences different from their male counterparts on the bench but that some of those experiences have been steeped in gender and racial dynamics. For example, Patricia Hill Collins (2000) discusses how Black women’s experiences as an oppressed group can shape their position in society and impact their professional opportunities. Due to the level of systemic oppression women of color have faced (professionally and politically), they can be routinely denied opportunities that are available to white people. These results also suggest an element in line with Gilligan’s (1982) theory on the different voice with regard to women operating and assessing moral and social dilemmas from an ethics of care perspective, which again argues that some women are more likely to take notice of, experience, and/or consider a variety of contextual factors, such as sensitivity to bias, race, male-dominated environments, and so on.

To conclude, future research should continue to build on and expand Gilligan’s (1982) work by evaluating whether patterns relating to the different voice exist across judicial officers, paying closer attention to race and sexual orientation of judges in order to examine the theory in a broader, less binary fashion. Moreover, though the findings presented here show evidence of the different voice theory at play with judicial behavior and perspectives, future studies should examine if differences between male and female judicial officers lessen with the amount of time they spend on the bench; that is, do judges, regardless of background, eventually comport and converge to professional norms and focus more intently on key principles, such as judicial independence?