Intersectionality and Opinion Crafting on the US Courts of Appeals

• In Event: US Courts of Appeals: The Appellate Work Horses of the Federal Judiciary

Abstract

In this paper, we use an intersectional lens to examine judicial decision making on the US Courts of Appeals, focusing on opinion content. Scholars have suggested the need to move beyond “single-axis” approaches and consider the ways in which the intersection of race and sex shape social and political phenomena (Crenshaw 1989). The social categorization process is believed to be more complex for those who have multiple identities or for those where the categories themselves are ambiguous (Kang and Bodenhausen 2015). Default stereotypes associated with racial groups are gendered, with stereotypes correlated with perceptions of race drawn from views about white males and black males (Ghavami and Peplau 2013). Default stereotypes about women tend to focus on white women rather than women of color (Goff and Kahn 2013). As a consequence of being forced into frameworks defined by constituent identity groups, scholars suggest that women of color run the “risk of intersectional invisibility” (Kang and Bodenhausen 2015). In the legal profession, women of color have experienced marginalization and invisibility, with one study findings that they were more likely than white women and minority men to report higher levels of unfair treatment based on race, gender, and age (Collins, Dumas, and Moyer 2017). In a recent study of 163 Black women judges, Means (2022) finds that, despite their relative position of power in the judiciary, Black women frequently were disrespected by litigants, and their attorneys. ( *Reference list available upon request.)

This study develops these theoretical frames and employs a research design that uses multiple observation strategies. First, we draw on approximately 2500 opinions associated with published decisions from the U.S. Courts of Appeals from 2009-2016 to test whether judges who are women of color craft opinions that are distinctive in terms of linguistic style due to differences suggested by social identity theory and status generalizing processes. One expectation is that women of color are more likely to have experienced marginalization in the legal profession and on the bench; as a result, they are less likely to use first person plural pronounce when authoring for the majority. Our second approach is to examine more closely the linguistic properties of dissenting opinions to evaluate differences by judge race-gender. As part of this analysis, we will also explore whether the content of dissenting opinions reflects on status generalizing processes within the small group. For example, are dissents in response to majority opinions authored by women of color qualitatively different than those written in response to majority opinions authored by colleagues who are white and/or male? Finally, we will explore the universe of opinions authored by women of color on the US Courts of Appeals from this same time period to consider within-judge differences. As a circuit becomes more diverse, for example, do women of color shift in their approaches to crafting opinions? Do women of color write opinions that respond to variation in the composition of the panel?

This collaborative research team includes: Gbemende Johnson, Alyson Hendricks-Benton, Karson Pennington, Vanisha Kudumuri, and Susan Haire (All currently affiliated with UGA).

Authors

• Susan Haire, University of Georgia

• Gbemende Johnson, University of Georgia

• Karson Pennington, University of Georgia

• Alyson Hendricks-Benton, University of Georgia