More than Just a Different Face? Judicial Diversity and Decision-making

Citation

Hunter, R. (2015). More than just a different face? Judicial diversity and decision-making. Current Legal Problems, 68(1), 119–141. https://doi.org/10.1093/clp/cuv001. Open access (CC BY 4.0).

Chapter Summary

This is a journal article of 23 pages, based on a Current Legal Problems lecture, not a book. It asks one question: is there evidence that a more diverse judiciary will make a difference to substantive decision-making? Hunter's answer is that non-traditional judges clearly may decide differently, but their willingness and ability to do so are constrained. Some of the constraints are unavoidable and others are unnecessary and should be removed in the interests of better decision-making.

Introduction

The article begins with recent efforts to diversify the judiciary in England and Wales: the Judicial Appointments Commission created in 2006, the Advisory Panel on Judicial Diversity chaired by Baroness Neuberger (2010), a Judicial Diversity Taskforce, a House of Lords Constitution Committee inquiry in 2011 and a statutory duty to encourage diversity in the Crime and Courts Act 2013. It then poses the question that this activity begs, using two prompts: Lord Neuberger's doubt about whether women judge differently, which led to a radio experiment in which students identified the gender of judgment-writers no better than chance, and Lady Hale's reply to the Constitution Committee, which pointed to the Feminist Judgments Project.

Why Should We Want a More Diverse Judiciary?

Hunter notes that the literature is uneven and concentrates on women judges, though the arguments apply to other forms of diversity. She sets out six arguments. Three are symbolic: greater democratic legitimacy, a signal of equal opportunity, and encouragement and mentoring for aspiring judges. Two are practical: women judges may have more empathy with women litigants and witnesses and tolerate less sexism in court, and they may educate male colleagues behind the scenes. The sixth is substantive: women judges bring a gendered sensibility, drawing on life experience or on an "ethic of care", and so may alter outcomes. Both theories of substantive difference face criticism for assuming essential female characteristics.

The Impossibility of Substantive Diversity

This section presents the case against. Quantitative studies, mostly of US courts, are equivocal, often finding no gender difference once factors such as judicial political affiliation are controlled. Explanations include common law judicial ideology (deference, precedent, incrementalism), the "invidiousness of difference" that pressures women to conform, as in Rackley's "Little Mermaid syndrome", and the view that legal method is closed to feminist perspectives. Interview material from England and Wales and Australia illustrates both self-imposed and enforced conformity.

The Contingency of Substantive Diversity

The central section argues that difference occurs "on occasion", and asks on what occasions. It identifies three conditions:

• Conviction. Difference is more likely when the judge is a feminist. Feminist judgment projects rewrite decisions and show that a feminist judgment can be legally plausible, though they remain limited because the imagined judges do not face the full disciplining pressure of the bench. Hunter also draws on 41 interviews with Australian judges, about two-thirds of whom thought that they judged differently as feminists.
• Opportunity. Many jurisdictions and cases allow little scope, and most cases raise no gender issue: Justice Neave's 204 cases yielded such an issue in 66, and Lady Hale's Supreme Court cases in 85 of 326. Hunter argues that opportunities are concentrated in cases where varied experience is most needed, and that judges can use dissent, concurrence or persuasive leading judgments. Feminist judgments can also be orthodox and may give full effect to progressive legislation.
• Expectations. Where the role is expected to bring in new perspectives, as Ruth Cowan describes for South Africa, difference is easier to express.

Conclusion

A more diverse judiciary may, but need not, produce different decisions, and only where opportunity combines with personal commitment or external encouragement. This is not a reason to downplay diversity, which has other justifications. To get fairer decisions, the system must shift from discouraging or merely tolerating judicial difference to supporting it, and appoint judges with the courage to make a difference.

Key Concepts

The Case for Diversity

• Symbolic, practical and substantive arguments: the six reasons for a diverse bench, only the last of which concerns decisions.
• Gendered sensibility: the claim that life experience or an ethic of care shapes judging.

The Constraints

• Common law judicial ideology: shared norms of precedent, restraint and incrementalism that discipline all judges.
• Invidiousness of difference: the pressure on non-traditional judges to conform to be taken seriously.

The Conditions for Difference

• Conviction, opportunity and expectations: the three factors that decide whether a judge's perspective changes a decision.
• Feminist judging: not a single programme but attention to marginalised experience, context and substantive equality.
• Feminist judgment projects: rewritten decisions that test whether law can accommodate a feminist approach.

Critical Analysis

Strengths

• A clear framework. The six arguments and the three conditions make an unorganised literature easy to use in an essay or seminar.
• Varied evidence. Hunter combines US quantitative studies, interviews with Australian judges, the rewriting projects and her own counts of cases that raise gender issues.
• Honest about limits. She concedes that the feminist judgment projects do not reproduce the pressures of real judging and that opportunities arise only in a minority of cases.
• Practical implications. The conclusions bear on appointment criteria, on appellate composition and on expectations of judicial roles.

Limitations

• Focus on women and feminism. Hunter says the available literature is uneven and so concentrates on women judges; evidence on race, ethnicity or sexuality is mentioned only briefly.
• Selective evidence. The interview sample consists of judges who identified as feminists or were willing to speak to a feminist project, and all but one were women; the case counts cover two judges.
• Lecture format. At 23 pages, the argument is a synthesis and cannot test its claims systematically.
• Date. Published in 2015, it predates later empirical work and developments in the appointment system.

Where It Fits in the Course

Within this course list, Hunter's article is a short research paper rather than a textbook, and it is the most specialised item. The English legal system textbooks by Allbon and Kaur-Dua and by Kelly describe the judiciary, appointments and the courts, and are the place to learn the institutions that Hunter assumes. Williams's Learning the Law and Finch and Fafinski's Legal Skills teach case reading and essay skills useful for working with an article like this. Twining and Miers's How to Do Things with Rules is a theoretical treatment of interpretation that sits alongside the discussion of legal method here.

Read it after an introduction to the legal system and in conjunction with the books on legal method and reasoning.

How to Use This Book

The article is for students of the legal system, jurisprudence or gender and law who already know how the English courts and the appointments process work.

A practical plan:

• Skim the introduction and conclusion first to see the question and the answer.
• Read the six arguments carefully and note which one is the substantive argument that the rest of the article tests.
• Work through the three conditions and make a table of conviction, opportunity and expectations with the evidence for each.
• Follow the footnotes to the Feminist Judgments Project and to Rackley and Kenney if you are writing on the topic.

Edition and Sources

The guide covers the version of record, Current Legal Problems, vol. 68, no. 1 (2015), pp. 119–141, published by Oxford University Press on behalf of the Faculty of Laws, University College London, as an open access article under the Creative Commons Attribution 4.0 licence. It is based on the full text, read in the copy deposited at the Kent Academic Repository (https://kar.kent.ac.uk/71539/) and available at https://doi.org/10.1093/clp/cuv001. The whole article was read, including its footnotes.