“When the prototype of leader is a white male, what happens is that [for] people who are seeking leadership roles when they don’t meet those prototypical characteristics, the standards by which they are evaluated are distinct and different,” says Ashleigh Shelby Rosette, a senior associate dean at the Fuqua School of Business at Duke University, whose research focuses on the intersection of leadership, gender, and race. “They tend to not be evaluated as positively as those who do.”
Implicit Bias Manifested in the Confirmation Hearing
Although the hearings were perhaps a departure from the unabashed racism confronted by Thurgood Marshall 50 years earlier, the subtle claim that a justice nominated in part because of his or her race was implicitly less qualified permeated the line of questioning. “When the power holders are more likely to be white men, then we see implicit bias emerge,” says Christina L. Boyd, an associate professor in the department of political science at the University of Georgia. Boyd’s research focuses on judicial diversity and the intersection of courts and the bureaucracy in American politics.
In her research, Boyd and her colleagues analyzed every Supreme Court confirmation hearing since 1939 to see the impact of race and gender. She found that female and minority nominees generally get more questions about their “judicial philosophies” as a way to suggest their qualifications may not be up to par. In addition, female nominees undergo a “substantially different confirmation process” than male nominees.
The study considered the types of questions asked of men and women nominees by opposing parties as well as the party that would presumably support the candidate. The results showed that, historically, nominees of the party in power enjoy much more of a presumption of mainstream, professional competence, “while similarly situated female and minority nominees enjoy no such presumption.”
What’s more, female nominees questioned by opposite party senators are asked 10 percent more questions about judicial philosophy than are male nominees questioned by the opposing party. The study points out that the one minority, female candidate, Sonia Sotomayor, faced “a substantial amount of judicial philosophy questioning relative to earlier nominees.”
Jackson’s qualifications were hailed across the board as impeccable; she has more judicial experience than four current justices combined had when they were first nominated and otherwise ticked all the proverbial boxes for a Supreme Court appointment. However, comments like the one coming from Senator Roger Wicker (R-MS) calling Biden’s decision “affirmative action” suggests somehow the bar is made lower for candidates of color, with the underlying belief that a person of color is less qualified.
Rosette points out that senators in the highly charged and publicized judiciary hearings play to the media and their base of white men by demonstrating their careful scrutiny of nontraditional candidates. The targets, when women and minorities—particularly women of color—report that they are used to having their credentials questioned.
In a 2018 report by the ABA Commission on Women in the Profession, women of color, white women, and men of color reported that they have to go “above and beyond” to get the same recognition and respect as their colleagues, known as the “Prove-It-Again” (PIA) factor. According to the report, women of color reported PIA bias at a higher level than any other group, 35 percentage points higher than white men.
One line of questioning for Jackson from republican senators hinted that she is soft on crime, and suspicions were raised about her work as a public defender representing Guantánamo Bay detainees. In a statement, the Republican National Committee referred to this work as “advocacy for these terrorists,” while Senate Minority Leader Mitch McConnell went so far as to suggest Jackson had “a special empathy for criminals.”
“A prevalent stereotype about African Americans is that they’re criminals,” Rosette says. She points out that by asking if Jackson would be tough on crime, the questioner is making a connection between Jackson, criminality, and negative stereotypes of Blacks. Particularly when a person is unquestionably qualified, with an exemplary record, like Jackson, Rosette notes that questioners use the tactic of raising doubt by associating the candidate with such negative stereotypes.
Bias on the Supreme Court: Pardon the Interruption
Partisan politics within the Senate judiciary committee aside, as an institution, the Supreme Court is customarily thought to have the highest standard of integrity. However, researchers from Northwestern University have been studying the dynamics between the justices as well as between the justices and advocates before the Court, specifically the propensity for male justices (and advocates) to speak over and interrupt the women justices.
In her years of studying the Supreme Court, Tonja Jacobi, a law professor at Northwestern Pritzker School of Law, noticed that “female justices get talked over a lot. We took a comprehensive look and found female judges were interrupted up to three times as often when compared to the male justices,” she points out.
A report coauthored by Jacobi, Justice Interrupted: The Effects of Gender, Ideology and Seniority at Supreme Court Oral Arguments, looked at the Roberts Court in the 1990, 2002, and 2015 terms and found that even though female justices speak less often and use fewer words, they are interrupted during oral arguments at a significantly higher rate. Not only do men interrupt more than women, but they interrupt women more than they interrupt other men.
Interruptions have long been considered a power dynamic, and gender communication research dating back to the 1970s demonstrates that men interrupt two to three times more than women. Interruptions are seen as an attempt to maximize power and assert dominance. When asked about the interruptions at the American Constitution Society’s National Convention shortly after the study was published in 2018, Sotomayor replied, “Is there a woman in the room who’s ever failed to notice that?”
Since then, Chief Justice John Roberts has made changes to the time allotted each justice and served as more of a referee, according to Sotomayor.
Perhaps more concerning were data that showed the female justices were also interrupted more by lawyers arguing their case. In addition, those advocating their case tend not to address female justices by name, nor do they use honorific titles as they do with the male justices.
Boyd’s study on the judiciary committee also found this true of senators’ behavior during nomination hearings. Notably, women who appeared before the judiciary committee are interrupted in 12 percent of their statements, compared with 6.7 percent for men. For example, Elena Kagan had more than 18 percent of her statements cut short or talked over, while Anthony Kennedy was interrupted in less than 1.5 percent of his statements.
Does Diversity Matter? Ideology vs. Diversity
Following a decades-long campaign by Republicans to stack the Court with conservative justices, blocking appointments made by a democratic president, the question becomes whether diverse perspectives can impact an institution that has become so polarized.
Chief Justice Roberts famously claimed the role of a Supreme Court justice was that of an umpire “calling balls and strikes,” and Justice Sotomayor was criticized for once saying that “personal experiences affect the facts that judges choose to see.” But many studies have shown the impact a diverse panel can have on decision-making.
Jacobi points to Sotomayor, who is the sole Latinx person on the Court, as someone who “raises questions that nobody else was asking, such as what is the effect on racial minorities? She is bringing her experience as a Latina woman and as a prosecutor who has seen how criminal justice works and how it can be unfair.”
In addition to being the first African American woman on the Court, Jackson is the only justice since Thurgood Marshall who has experience as a public defender. “Having to navigate the criminal justice system on behalf of indigent defendants is a really crucial perspective for justices who are regularly hearing cases about the fairness of trials or the rights of criminal defendants,” says Alicia Bannon, director of the Judiciary Program at the Brennan Center for Justice, where her work focuses on promoting a fair judicial system. “She brings a diversity of life experiences and professional experiences, and that’s a really important perspective to have on the Supreme Court.”
The impact of diverse perspectives is often cited in two cases that arose when Ruth Bader Ginsburg was the only woman on the bench. In the first, Ledbetter v. Goodyear Tire & Rubber Co., decided in 2007, Ginsburg took the unusual step of reading her dissent aloud, chastising the Court for failing to “comprehend or [being] indifferent, to the insidious way in which women can be victims of pay discrimination.” Two years later, Congress passed a Fair Pay Act in Lilly Ledbetter’s name.
The other case, Safford Unified School District v. Redding, decided in 2009, involved the strip-search of a 13-year-old girl. The oral arguments questioned the seriousness of the charge, likening it to locker room situations, and only Ginsburg expressed strong concerns. The court voted 8-1 in favor of the girl’s suit, and Ginsburg is widely believed to have influenced her colleagues. In an interview with USA Today, she explained, “they have never been a 13-year-old girl.”
When Ketanji Brown Jackson takes her seat on the Supreme Court, she’ll join a bench that is highly polarized and ideologically split. Despite this, the Court is coming closer to what America looks like, with four women, three people of color, and four white men. “The fact that we have a Supreme Court justice with sisterlocks—that goes a long way,” Rosette says.
“Research suggests that diversity can enhance public confidence in the courts, and it can lead to greater trust if people look at the courts and see judges that look like them,” Bannon says. “Today’s dissent is tomorrow’s majority. It’s important to have her perspective laying out legal frameworks that may be taken up by courts in the future.”
But representation and diversity can only go so far, and the current bench’s conservative leanings do not necessarily mean that justices will listen with an open mind and be receptive to other voices. “The right processes need to be in place,” Rosette says.
However, one thing is for certain: We are altering the racial and gender prototype of a Supreme Court justice.
“If you were to ask what’s going to be the race and gender of the next president of the United States, I can answer based on probability because we’ve only had one president who was not a white male,” Rosette says. “We can no longer say that about the Supreme Court.”