Abstract
During group deliberation, women tend to be the harbingers of compromise, vying for consensus on even the most contentious topics. However, women cannot succeed in this endeavor if gender bias prevents their voices from being heard. In federal courts, collaboration is essential to reaching the simple majority needed to resolve a case. While the courts already function under norms of collegiality during deliberations, the practice of writing a separate opinion to acknowledge disagreement with a majority opinion remains relatively common. In this Article, I test two competing theories as to the effects of women judges on consensus. On one hand, I posit that women’s tendency toward democratized decision-making should lead to greater consensus. If women who are judges are more likely to compromise with their peers, it seems likely that case deliberation will be more consensual when women are part of the process. Alternatively, the possibility of gender bias might lead to greater levels of dissensus when a panel includes both men and women. If men are skeptical of positions taken by women and/or women perceive their voices as not being heard by men, dissensus may abound when women join panels. Using both empirical and qualitative evidence, I find support for both theories. Specifically, employing a dataset of more than 11,000 federal appellate opinions and 27,000 judge-case pairings, I find that the presence of women judges generally leads to greater dissensus on the courts. However, the data simultaneously indicate that all-woman panels reach the highest levels of consensus. A systematic analysis of the recorded oral histories of 29 federal appellate judges confirms that, while women may be more likely to pursue consensus building, they will sometimes fail, possibly due to perceptions of bias against them. However, this gendered dissensus may also simply be a byproduct of diverse deliberation that leads to more well-reasoned decision-making, a potentially desirable practice for the court.
Recommended Citation
Kaleigh A. Ruiz,
Gender and Consensus on the Courts,
32
Mich. J. Gender & L.
249
(2025).
Available at:
https://repository.law.umich.edu/mjgl/vol32/iss2/4