June 16, 2014

"It turns out that judges with daughters are more likely to vote in favor of women’s rights than ones with only sons."

"The effect, a new study found, is most pronounced among male judges appointed by Republican presidents, like Chief Justice Rehnquist," reports Adam Liptak, in the NYT.
The new study considered some 2,500 votes by 224 federal appeals court judges. “Having at least one daughter,” it concluded, “corresponds to a 7 percent increase in the proportion of cases in which a judge will vote in a feminist direction.”

Additional daughters do not seem to matter. But the effect of having a daughter is even larger when you limit the comparison to judges with only one child.

“Having one daughter as opposed to one son,” the study found, “is linked to an even higher 16 percent increase in the proportion of gender-related cases decided in a feminist direction.”
If we assume the study accurately detected a "daughter effect," what would account for it? One might guess it's that parents are attuned to things that might advantage or disadvantage their own children. Or maybe the daughters tend to support the "feminist direction" and make influential arguments to their fathers (and mothers) or make their fathers (and mothers) feel moved to please their daughters.

Liptak writes specifically about Chief Justice Rehnquist and his opinion in a 2003 decision "that so delighted Justice Ginsburg," Nevada Department of Human Resources v. Hibbs, which found that Congress had power under the Fourteenth Amendment to require states to give their employees leave to care for family members. I've written a lot about that case including in this (PDF) law review article and in this blog post:
For there to be Fourteenth Amendment power, it must be shown that Congress is really enforcing the rights guaranteed by the Fourteenth Amendment. It can't use this power to create different rights or offer other benefits, however justified and beneficial those new rights or benefits may be. To say that there is no Fourteenth Amendment power is not to say the [Family and Medical Leave Act] isn't a good idea or that women aren't "disadvantaged in the workplace when they are not allowed to take family leave." Fourteenth Amendment power requires that the law remedy the violation of rights. What constitutional right against sex discrimination was being remedied by guaranteeing unpaid family and medical leave? Keep in mind that the constitutional right against sex discrimination is only violated by intentional discrimination. How were the states violating rights in a way that family leave corrected?

In Hibbs, Chief Justice Rehnquist ultimately bent over backwards to find a way to say that the FMLA fit the Fourteenth Amendment power. (It had to do with the tendency to give more leave to women than to men, by the way, not any failure to give leave. And it wasn't about the need to help women who have family responsibilities. It was about stereotyping women by assuming they have more family responsibilities than men!)
Liptak quotes Justice Ginsburg: "When his daughter Janet was divorced... I think the chief felt some kind of responsibility to be a kind of father figure to those girls [i.e., his granddaughters]. So he became more sensitive to things that he might not have noticed."

More sensitive to "things he might not have noticed" or more sensitive to the desires and opinions of the women in his life?

I'd posit the latter, because Rehnquist's Hibbs case is notable for its complete failure to find a constitutional rights violation that was remedied by the entitlement to unpaid leave, as Justice Kennedy made obvious in his dissenting opinion.

Liptak quotes political scientist Maya Sen, a co-author of the study: "Justices and judges aren’t machines... They are human, just like you and me. And just like you and me, they have personal experiences that affect how they view the world. Having daughters... is just one kind of personal experience, but there could be other things — for example, serving in the military, adopting a child or seeing a law clerk come out as gay. All of these things could affect a justice’s worldview."

I'm all for judges who've got lots of real-world experience in them, to go along with the reading and analysis skills that they must use to decide cases. You can't understand anything without reference to the world, and it's terrible to have to trust judges who have limited experience, particularly those who've spent too many years enclosed in the life of judging. Rehnquist had sat on the Supreme Court for 31 years, and he was 78 when he wrote Hibbs.

Is it "delightful" — Ginsburg's word — to think that Rehnquist absorbed his sense of how the world works from empathizing with his own family members? Or should we anguish over getting stuck with opinions written by judges whose connection to real life is so limited and self-centered?

31 comments:

mccullough said...

Since Hibbs was 6-3, maybe Rehnquist decided to join the majority so he could write the opinion instead of letting O'Connor make a squishy opinion.

khesanh0802 said...

Judges are human and should consider the things that they have learned in life as they are making judgements. I think we are unrealistic to expect otherwise. I agree that, the broader the judge's experience, the less one facet of that experience will influence a decision.

I imagine this study covers mostly "recent cases" which, I suspect, have had a greater percentage of "women's issue" cases than in the past. I imagine a similar study would find a justice who has a gay son or daughter is also more attuned to "gay issues" as they come before a court. The justice has broader "experience".

MayBee said...

Deciding something the way feminists want it decided and being in favor of "women's rights" are not synonymous.

n.n said...

Bias is a product of nature. Prejudice is a product of circumstance or indoctrination. We have to assume the former and mitigate the latter.

It's not only judges who are affected by this objective truth. It's also journalists, professors, etc.

We recognize conflict of interest for just this reason. There are few people who can remain objective when they retain a personal interest or stand to gain from their choice.

Anonymous said...

What rights would be promoted by a Judge that loved a Sex Robot?

jr565 said...

If some people didn't have gay relatives would they care about gay marriage.

jr565 said...

Are judges with daugthters more likely to rule agianst men in favor of women? Or are women judges with sons or daughters more likely to rule for or against women or men?

Basil said...

Judges aren't supposed to "vote". Voters are supposed to vote and judges are supposed to decide cases on what the law is, as determined by the voters through their elected representatives. Otherwise, it's just governing by Kings in black robes rather than royal ones.

Anonymous said...

In other news, when the sun rises in the East and sets in the West, Judges are more likely to vote in favor of "womyn's rights" than when the sun doesn't rise at all.

campy said...

Wise minorities with ladyparts are still the best.

MarkW said...

And is there a son effect? Do judges with all daughters decide differently than those with at least one son? Especially female judges? This feminist lawyer certainly thought the world looked a whole lot different because she had a son:

http://online.wsj.com/news/articles/SB10001424127887324600704578405280211043510

Zeb Quinn said...

And if were defending an accused murderer at trial, with the death penalty at issue, my perfect jury would be 12 mothers whose sons had been executed by the state. This proves what? That people with interests have biases? But we already knew that.

Richard Lawrence Cohen said...

"they [young American career women] began to be encouraged by, of all people, their fathers—their 'besotted' fathers, in Wolf’s words. One reason for the change in the attitudes of fathers is that in the second half of the twentieth century, families became smaller; children were no longer economically valuable for the labor they provided on farms and family-owned businesses, and with the rise in the standard of living and improved health care, they were all expected to survive to adulthood. Jennifer Senior, in her new book, All Joy and No Fun: The Paradox of Modern Parenthood,1 refers to the end of World War II as the beginning of modern childhood, and quotes Viviana Zelizer as characterizing today’s child as “economically worthless but emotionally priceless.”

As families became smaller, fathers became more ambitious on behalf of their daughters, since in a two- or three-child family they might have no sons."


The Women at the Top
Marcia Angell
March 20, 2014 issue of New York Review of Books

[review of]
The XX Factor: How the Rise of Working Women Has Created a Far Less Equal World
by Alison Wolf
Crown, 393 pp., $26.00

http://www.nybooks.com/articles/archives/2014/mar/20/women-at-the-top/

Richard Lawrence Cohen said...

"Besotted" is perfect.

Terry said...

Let's rephrase the quoted statement:
"Judges who produce children who are more risk averse tend to favor interventionist government."
Correlation is not causation.

James Pawlak said...

"Women's rights"? I was under the impression that "rights" were to be "equal across the board" without regard to race, color, GENDER, Etc..

David said...

I'm going to claim to having had a daughter effect on my daughters. I tried to teach them from the outset that they could do anything. Not that they could do anything that boys can, because that would have been directional. Just not give them any limits, and not coddle them because they were females.

It worked out great. They are strong, independent, clear thinkers (usually), resourceful, brave and reliable. They have married and have families and are also employed at jobs they enjoy and are good at. They do not whine, at least not around me.

It never occurred to me not to be in favor of women's rights. But I also believed in women's responsibilities. There are certain fundamental rights that everyone is born with. Other rights are earned, like the right to be trusted, believed, followed or admired.

In the last half century or so, as a society we have emphasized rights. That is all to the good, even if it gets a little silly at times. But we have not put the same emphasis on responsibility. If responsibility catches up, the expansion of rights will have been a huge success. If it doesn't, we will end up with a nation of over entitled undergraduates.

You don't hear the word "empowerment" as much these days. Too bad. The concept of empowerment seems to be starting to shuffle offstage before its character ever got developed. Empowerment derives from taking responsibility for your self, and the consequences of your own actions and inaction. There is no other way to become empowered.

Ann Althouse said...

"Since Hibbs was 6-3, maybe Rehnquist decided to join the majority so he could write the opinion instead of letting O'Connor make a squishy opinion."

Since his opinion squished up a whole line of important federalism cases, that theory won't fly. He chose to put his name on what was as big of a squish than O'Connor would have done and by making it more than a 5-4 decision, he gave that squishy opinion more clout.

broomhandle said...

Black Supreme Court justices are more likely to rule in Crack's favor.

Ann Althouse said...

"If some people didn't have gay relatives would they care about gay marriage."

Yeah, and I think it undercuts an argument to have a personal interest in the outcome.

I had this debate with Glenn Loury on Bloggingheads. Each of us has a gay son, and he was opposed to ssm until he realized he had a gay son. I was for ssm before I knew my younger son is gay, and I've never use that personal fact in an argument for ssm. It's totally irrelevant!

EDH said...

Two initial observations:

1.) The R-squareds seem low. Not a lot of the variation is being explained by the models.

2.) The party affiliation associated with the judge is that of the president who appointed him or her, not the judge.

To the extent the presidents of one party are less doctrinaire in appointing judges predominately of their own party, or do not apply a litmus test on issues like abortion, could confound the results, could it not?

In other words, if Republican presidents are more likely to appoint Democrats as judges or not apply a litmus test on abortion and other "feminist" issues, that would skew the significance of the "Republican" variable as it relates to daughters.

I'd like to see the correlation between presidential party and the party/ideology of the judges they appoint.

Couldn't this be a classic case of multicollinearity?

sean said...

This is kind of what John Ely said many years ago, and part of his disdain for the Burger court: they supported women's rights, because they thought of it as something benefiting their wives and daughters, unlike the Warren court, which protected racial minorities out of a genuinely disinterested desire for justice.

Nowadays, of course, no academic believes that a disinterested desire for justice is possible, so identity politics is not just the only kind of politics, but the only kind of law, at least in the academy.

The Godfather said...

Correlation isn't causation. Judges are required to write or join opinions to explain their rulings. Do the opinions stand up to analysis, or are they just rationalizations of daughter-prejudice?

Ann Althouse said...

Here's a link to that Bloggingheads clip I referred to above.

Anonymous said...

If only it were so simple that people generally respected the differences and limitations of their own and others' direct experiences of the world.

But that's a lot to ask.

And in this context, pretty much bullshit.

There's a pack of people ready to use their ideals as cudgels and smear you all the while.

Life in the public square so many people want to simply dominate according to the commitments.

KenK said...

Children aren't "economically worthless" if you are a welfare parent, an immigrant, or are lower income and seeking benefits (e.g., EITC). Societies get what they subsidize.

Anonymous said...

Oh yes. I just noted that this post is labeled under "affirmative action." Why? For no reason whatsoever other than the race of Malia Obama.

This is precisely what I was talking about.

mccullough said...

Compared to Tennessee v. Lane, the Hibbs case is a model of judicial clarity. O'Connor has the distinction of being in the majority of all the Section 5 sovereign immunity cases from 1997 to 2004. She was such a squish.

SGT Ted said...

So, judges are more sexist when they have daughters.

Good to know.

jr565 said...

"I had this debate with Glenn Loury on Bloggingheads. Each of us has a gay son, and he was opposed to ssm until he realized he had a gay son. I was for ssm before I knew my younger son is gay, and I've never use that personal fact in an argument for ssm. It's totally irrelevant!"
It should be. Even if you don't say you use it, you may be without consciously doing so. Or consciously doing so. Or others may be.
You can barely even make the argument that you are for gay civil unions with all the rights of marriage without The person on the pro gay marriage side making the most personal arguments ans accusing you of wanting him dead, or something.It's so personal they can't argue it rationally.

jr565 said...

Here's proof of my claim about Ellsberg:

http://www.nytimes.com/1997/11/16/books/call-the-plumbers.html

And again, the Pentagon Papers did not actually do much to indict Nixon himself. He was the president at the time overseeing the war, so it was his war. But the Pentagon Papers were not about his conduct of the war.