جنسیت، مخالفت قضایی و مسئله اهمیت: رفتار رای گیری قضات دیوان عالی کشور در موارد آزار و اذیت جنسی، 1980-1998

Abstract The importance of women on the bench and the influence of gender on decision making has garnered much scholarly attention. Based in large part on the belief that women will act as “representatives” of their gender, much of the literature attempts to determine if women in fact do support the pro-women position in judicial cases. However, because the literature assumes women will act in a prescribed manner given the opportunity, the literature fails to question the willingness of women justices, given the political context of a case, to fulfill this responsibility. I propose that decision making by female justices on state supreme courts is dependent not only on the attitudinal predisposition women may have in support of the pro-women position in gender-sensitive judicial cases, but also upon the political and institutional context of any given case. Accordingly, I examine the voting behavior of state supreme court justices in sexual harassment cases decided between 1980 and 1998. I find that women justices do support the pro-women position in sexual harassment cases prior to 1992 and the Anita Hill–Clarence Thomas sexual harassment Senate hearings. However, after 1992, there is no significant difference in the voting behavior of male and female justices suggesting the increased salience of the sexual harassment issue influenced judicial votes. In recent years, several authors have questioned the influence of judges’ gender on their decision-making process. Extending the general argument that women act differently than men (Chodorow, 1978 and MacKinnon, 1987) many authors believe that women judges engage in a fundamentally different decisional calculus than men (Allen & Wall, 1993; Crowe, 2000 and Davis, 1993; Davis, Haire, & Songer, 1993; Gryski, Main, & Dixon, 1986; Martin, 1993; Sherry, 1986). While scholars do not necessarily agree on the effects of gender on justice,1 they would agree with Justice Sandra O’Connor’s observation that “It makes a night and day difference to have women on the bench (Crowe, 2000).” More specifically, much of the research on women on the bench makes the basic assumption that women will act to support women and women’s rights. The results of this line of work are mixed. For example, Davis et al. (1993) find that women judges do act as representatives for their gender in sex discrimination cases while Davis’ (1983) analysis of Carter’s appointees to the U.S. Appeals Court indicates that nontraditional appointees do not act as representatives of their group. If there are only a token number of women on the court, Allen and Wall (1993) conclude that the women behave as outsiders while an analysis of Justice O’Connor’s voting patterns for the United States Supreme Court does not indicate a necessarily consistent female jurisprudence (Davis, 1993). Regardless of the findings, a majority of this research proceeds on the belief female justices are politically willing to support women’s rights. In essence, by emphasizing the attitudinal predispositions of women judges and questioning only the justices’ responses to the issues, the literature ignores the institutional and political context in which decisions are made. That is, the literature in general assumes a justice’s desire to vote policy preferences without first questioning the judge’s willingness to make this choice. I contend, however, that judges, male or female, are not isolated actors totally unconstrained in their ability to render decisions based purely on policy preferences.2 Rather, depending upon the structure of the particular court and the context of any particular case, justices may not be able to decide decisions on policy preferences without risking personal political security.3 Accordingly, this research examines the voting behavior of male and female justices on state courts of last resort controlling for the institutional and political variables which may influence decision-making practices. First, I question if institutional arrangements which surround the recruitment and retention of justices structure decision making. As most state court judges do not receive life tenure, do retention features restrict the implementation of personal policy preferences? Are electoral considerations manifest in voting? Does the inclusion of an intermediate court of appeals sway voting behavior? I posit institutional constraints are a vital factor in decision making and thus incorporate institutional variables in this study. Second, the literature also often ignores the political context in which decisions are made. The salience of an issue, for example, may cause a justice to be more aware of public opinion and render decisions which are consistent with public opinion regardless of the justice’s own personal policy dispositions (Canon, 1992). Are women more likely, for example, to render votes which support equal pay but less likely to support a women’s right to choose? Canon suggests that the moral and religious considerations inherent in the abortion decision force more care and caution in voting than would an issue like equal pay. Moreover, does the timing of a particular case within the justice’s term further structure voting calculations? Assuming a female justice’s predisposition is to support the right to choice, is she more likely to voice this opinion if she has just been elected as opposed to if she is just about to face election? This research posits that the political context surrounding any case, specifically the timing of a case within the justice’s term and the current salience of a given topic,4 are relevant factors in judicial decision making which must be incorporated in an analysis of voting behavior. In this research, I examine the voting behavior—specifically a justice’s tendency to dissent against the court opinion—of male and female justices from 47 state supreme courts5 between 1980 and 1998 in sexual harassment cases. I examine state supreme courts because institutional factors such as method of retention, term length, number of assigned law clerks and presence of an intermediate court of appeals vary and thus the influence of these factors on decision making can be evaluated. Moreover, I use sexual harassment cases in order to study the differential voting behavior of male and female judges on a gender-sensitive issue. Finally, by using sexual harassment cases that were decided before and after the 1992 elections (The Anita Hill–Clarence Thomas sexual harassment hearings were held in 1991), I develop and empirically test hypotheses regarding how factors such as issue salience and decision timing expand or constrict the boundaries within which justices seek to maximize personal preferences. Because the Hill–Thomas sexual harassment hearings propelled the issue of sexual harassment onto the public agenda and the 1992 elections made politicians aware that their positions on sexual harassment alone can determine their electoral fortunes (Paolino, 1995), I examine the public’s changing interest in sexual harassment issues and its influence on judicial behavior. In short, the research design allows for a study of differential voting by male and female justices on a gender-sensitive issue within a variable institutional and a changing political context. In the sections that follow, I first delineate the dependent and independent variables and the accompanying hypotheses used in this analysis. Following, I present the results of this study and discuss the implications.

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. Conclusion An interpretation of the three regressions supports, in part, the notion that political, attitudinal, and institutional variables all contribute to judicial decision making on state supreme courts. Starting first with the attitudinal variables, while there is no support in this research for the ideological predisposition variable, there is support for the gender variable. Women before 1992 did engage in differential dissent behavior from their male colleagues and the raw data suggest that in all but one instance in which women justices dissent before 1992, it is in support of the pro-female position. On a gender-sensitive issue in which the literature holds that women justices are expected to support the female position, before 1992 justices act consistent with this expectation. For the attitudinal variables, Hypothesis 1 is supported while Hypothesis 2 is not supported by this data. However, as the political timing variable and results after 1992 suggest, women are not unconstrained in their ability to support the pro-female position in sexual harassment cases. The increase in issue salience forces all justices to consider the timing of the case as the primary determinate in the decision to dissent. Less willing to stand alone on an issue of extreme significance to the public, and less willing to bring attention to their individual positions, justices do not dissent in sexual harassment cases unless there is a significant amount of time remaining between the decision date and the justices’ retention date. Both political context hypotheses are supported by this research. Timing is crucial in the decision to dissent and the influence of institutional and attitudinal variables are moderated by issue salience. Finally, the institutional variables are of differential importance within the three regressions with only the clerk of courts variable consistent across all three time frames. While the intermediate court of appeals variable has been significant in past research, it is only significant in this study for the cases before 1992. The results indicate that institutional characteristics may be important, but only after the political context of any given case is considered. Overall, I would suggest that female justices before 1992 do support the pro-women position in sexual harassment cases and, because the issue is relatively unimportant to the public, are willing to act on their policy inclinations. However, following the Hill–Thomas hearings and the 1992 election, the political context in which sexual harassment cases are decided changed so dramatically as to force a new decisional calculus on all judges. The only point of consideration for judges after 1992 is the issue of timing—if their retention date is close, the judges appear to truncate the decisional process and merely vote with the majority. If their retention date is later, than the justices might dissent. The political context of the case appears to have altered a justice’s willingness to vote in one manner over another and suggests that studies of gender motivated behavior of state supreme court justices must consider the political environment in which decisions are made.