“Nevertheless, She Persisted”: The Role of Gender on the Swedish Supreme Court

• In Event: Gender and Judging: Court Decision-Making in New Contexts

Abstract

In all aspects of society, women face gender-based expectations and the judiciary is no exception. Traditional female norms of behavior of relevance in a legal setting includes cooperativeness over combativeness, consensus-seeking over adversarialism, to not make a fuzz (cf. Menkel-Meadow 1986), and women who violate these norms risk negative consequences (Gleason et al. 2019), both socially and professionally. As female judges must navigate specific gender expectations (Nelson 2015), it is of particular interest to analyze how they act on the bench compared to their male colleagues and previous research has shown how gender-related factors affect judicial outcomes (Boyd et al. 2010; Glynn & Sen 2015; Thompson & Morris 2013).

This paper focuses on the understudied issue of dissenting and concurring opinions by female judges on apex courts. Apex courts, e.g. the U.S. Supreme Court, foster individualism and judges serving on many apex courts are allowed, even encouraged, to disagree and to take individual and conflicting stances expressed through dissenting and concurring opinions. From a gender perspective, this practice is at risk of conflicting with the norm that women should be agreeable and, as a result, we expect gender-based differences in how male and female judges use dissenting and concurring opinions.

In particular, we are interested in what extent male and female use such opinions, on what subject matters, and whether this has developed over time. Previous research points to “threshold effects”, i.e. that gendered behavior is increasingly likely to shift once gender representation reaches a certain level (Scheurer 2014). Consequently, the impact of the relative number of female judges on the court and on individual panels is of particular interest and, along similar lines, the relevance of the gender of the court president.

To explore these questions, we specifically compare male and female judges on the Swedish Supreme Court (SSC). The Swedish example provides valuable insight into these issues. The idea of gender equality has traditionally been seen as strongly linked to the Swedish self-image and a general and pervasive goal in public affairs (Sohl 2019), including when it comes to judicial appointments. There is a relatively long history to draw from as the SSC received its first female justice in 1968, and there has since been a steady stream of female appointments to the Court, for a total of 18 female judges and 1 Court President at the time of writing. Consequently, the Swedish example offers a possibility to study and control for individual variation in the group of female judges. We control for professional background, as it may generally affect propensity to dissent and concur, and for seniority, as experienced justices may be more comfortable dissenting and concurring than inexperienced justice. We are also interested in whether female SSC judges tend to have different professional experiences when coming to the Court compared to their male colleagues.

This paper is part of a larger research project, Judicial Power and Power over the Judiciary, and uses a unique dataset collected as part of that project, specifically information about the gender and professional background of all 322 judges appointed to the SSC (1789–2019), as well as the judgment text in thousands of SSC decisions (1982–2021), split by participating judge and tagged with information about sources, arguments etc.

References

Boyd, Christina L., Epstein, Lee, & Martin, Andrew D. (2010). Untangling the causal effects of sex on judging. American Journal of Political Science, 54(2), 389–411.

Gleason, Shane A., Jones, Jennifer J., & Mcbean, Jessica R. (2019). The Role of Gender Norms in Judicial Decision-Making at the U.S. Supreme Court: The Case of Male and Female Justices. American Politics Research, 47(3), 494–529.

Glynn, Adam N., & Sen, Maya (2015). Identifying judicial empathy: Does having daughters cause judges to rule for women’s issues? American Journal of Political Science, 59(1), 37–54.

Menkel-Meadow, Carrie (1986). The Comparative Sociology of Women Lawyers: The “Feminization” of the Legal Profession. Osgoode Hall Law Journal, 24(4), 897–918.

Nelson, Kjersten, Double-Bind on the Bench: Citizen Perceptions of Judge Gender and the Court, Politics & Gender, 11 (2015), 235–264.

Scheurer, Katherine Felix (2014). Gender and Voting Decisions in the US Court of Appeals: Testing Critical Mass Theory. Politics & Policy, 35(1), 31–54.

Sohl, Lena (2019) “It Is So Swedish That You Have to Work”. Returning Swedish Migrant Women’s Negotiations of Gender Equality and Heterosexuality, NORA - Nordic Journal of Feminist and Gender Research, 27:2, 80-95.

Thompson, Jennifer L., & Morris, Scott B. (2013). What Factors Influence Judges’ Rulings About the Legality of Affirmative Action Plans? Journal of Business Psychology, 28, 411–424.

Authors

• Johan Lindholm, University of Umea

• Mattias Derlén, University of Umea

• Daniel Naurin, Oslo University