Women “doing” the judiciary: rethinking the justice argument for descriptive representation

ABSTRACT

In this paper, we explore how political scientists can improve the study of gender diversity in the judiciary by drawing on the normative and theoretical literature on representation generally, and on descriptive representation specifically. In particular, we examine an undertheorized argument within the literature on descriptive representation, namely, the justice argument. Using Nancy Fraser's discussion of two justice frameworks, specifically, the recognition and redistribution frameworks, we argue that political scientists should evaluate the justice effects of a diverse judiciary using multiple conceptions of justice. In this way, we use normative theory to generate new research directions in the study of judicial diversity.

KEYWORDS:

• Judiciary
• diversity
• descriptive representation
• justice
• redistribution
• recognition

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Much of the literature equates the judiciary with judges. Indeed, the focus of this paper is on the diversity of judges; however, it is important to recognize how diversity can also pertain to the judicial administration, e.g. clerks and juries.

2 Our focus here is on the effect of having more women, but our discussion has implications for how we conceive of diversity in the judiciary more generally.

3 Similarly, Jennet Kirkpatrick makes the connection in this issue when she writes “the common law system has representation built into it: lawyers are supposed to zealously represent their clients and juries are supposed to represent the fair-minded views and experiences of the communities from which they are drawn” (Kirkpatrick 2020)

4 The Office of the Commissioner for Federal Judicial Affairs in Canada indicates that 37 new female judges were appointed in 2017, while only 20 were appointed in 2016.

5 There is an extensive literature that compares different institutional designs for increasing the number of women (e.g. Studlar and Welch 1991; Trounstine and Valdini 2008) or racial and ethnic minorities (e.g. Brockington et al. 1998; Canon 1999).

6 For a more detailed discussion of the resistance to gender quotas, see Krook (2016).

7 Tonja Jacobi and Dylan Schweers (2017) found that “the male justices interrupt the female justices approximately three times as often as they interrupt each other during oral arguments.”

8 While our focus here is on gender diversity, another article in this issue addresses how racial diversity is important for assessing the performance of representatives, see Boyd and Rutkowski.

9 For a helpful literature review on the meaning of justice, see Miller 2017.