"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?