In the weeks since I last posted on the topic, much of the furor has died down regarding the previous comments made by Sonia Sotomayor concerning the role of gender and racial identity in legal judgment. In fact, just days after my post, Newt Gingrich (sort of) retracted his allegation that Sotomayor was a racist. I can only assume that Gingrich's regular subscription to my blog played some role in his (sort of) reversal.
But as I suggested at the end of that post, to my mind, the even more interesting race/gender-related question inspired by the nomination of Sotomayor is how her addition to the Court might impact the tendencies of the 9-justice entity. Because research in a wide range of fields provides compelling evidence that the demographic composition of a group can affect the way it goes about making decisions.
There's a reason, after all, that "diversity" has emerged as an überbuzzword at the dawn of our new millennium. Sure, you could argue that the lip service that many a politician, CEO, and university administrator pays to supporting diversity initiatives simply reflects contemporary norms of political correctness. But there's more than that going on.
Six years ago, why did dozens of former military leaders and the CEOs of close to 70 Fortune 500 companies file briefs with the Supreme Court siding in favor of the University of Michigan's race-conscious admissions process? Was it because they thought it would make them look good? Out of some sort of perceived moral obligation? Keep in mind, these aren't individuals who tend to sacrifice bottom-line efficiency in the name of reputation or public opinion polls. No, their support of affirmative action reflected a belief, based on institutional experience, that diversity has observable, even quantifiable effects on a group's performance (positive effects, in this instance).
This is the more provocative issue raised by Sotomayor's nomination, namely that her presence the will impact the decision-making of the Court. This is, in the end, the assumption underlying many diversity-related initiatives: diverse groups are somehow different than non-diverse groups. But how exactly is demographic diversity supposed translate into differences in group performance and decision-making? I'd argue that there are at least three processes by which such influence occurs.
1) The simple demographic explanation. For example, if men and women, on average, tend to have different opinions on a particular topic, then changing the gender composition of a group is likely to change its voting totals on that topic. Continuing with the gender example, women are more likely to be registered Democrats than are men. So if you're putting together a focus group to evaluate a presidential debate, the more women in the room, the more likely the group will be to vote the Democrat as the winner, just by simple demographics.
In the case of the Supreme Court, Sotomayor's nomination is not likely to have much of an effect along these lines. The Justice she'd be replacing, David Souter, is typically considered to be a moderate liberal. In many of the cases to appear before the Court, Sotomayor may very well vote the same way Souter would have, leading to no net change in the group outcome due to demographics. Things would be different, of course, were Sotomayor replacing either of the last two Justices to leave the Court, Rehnquist or O'Connor.
2) The information exchange information. A group's diversity also has the potential to change the scope of the information exchanged during its deliberations. This is, I would argue, the way that many of us think about diversity: bring to the table a group of people with a wide range of backgrounds and you also bring in a wide range of perspectives and experiences.
For example, in a mock jury study I conducted a few years ago, we found that when discussing the assault trial of a Black defendant, racially diverse juries actually deliberated longer than did all-White juries. Diverse juries discussed a wider range of evidentiary facts from the trial itself, raised more questions about additional evidence they wished had been presented, and were more willing to discuss controversial issues during deliberations than were all-White juries.
In the case of Sotomayor, there are many who would argue that adding a woman and the first Latino to the Court is important precisely because of this information exchange–because women and ethnic minorities see many issues differently than do men and Whites, and these diverse viewpoints have to this point been underrepresented (or not represented at all) on the highest court. And they're probably right, at least for some of the issues that will appear before the Court: research suggests that female judges are more likely than male judges to find for the plaintiff in sex discrimination suits.
My own reaction to the information exchange idea is more mixed, I'll admit. I certainly think it's important to have better representation of women and ethnic, religious, and sexual minority groups on the Supreme Court and in other courtrooms, boardrooms, and classrooms across the country. Doing so not only speaks to core values such as representativeness and basic fairness, but also bolsters the perceived legitimacy of these various institutions.
But taken too far, the information exchange idea can be a problematic oversimplification. To imply that there exists a "female perspective" or a "Latina perspective" on an issue suggests a monolith that is both unrealistic and unfair to the new Justice. As anyone who has ever been asked–overtly or more subtly–to "speak for" their demographic group ican attest, placing the onus for the effects of diversity squarely on the shoulders of minority group members is a heavy burden to carry. That's why I also think it's important to keep in mind...
3) Non-informational effects of diversity. In the mock jury study I mentioned above, many of the effects of diversity we observed derived from the finding that White jurors performed very differently in homogeneous versus heterogeneous groups. Perhaps due to a combination of concern with appearing fair and the expectation of a tense discussion, White mock jurors did a better job attending to and accurately recalling the facts of the case when they were part of a diverse jury.
And the data I cited above regarding gender of judges in sex discrimination cases? Well, it also turns out that simply having one female judge sitting on a three-judge panel also makes the male judges more likely to side with the plaintiff. And in voting rights cases, simply having one Black judge sitting on a panel makes White judges more likely to conclude that a violation as occurred.
You see, we actually think and see the world differently when we're in diverse settings. You don't have to take my word for it–just look at what Antonin Scalia once had to say about the impact that Thurgood Marshall's presence had on the justices' discussion of cases:
Marshall could be a persuasive force just by sitting there. He wouldn't have to open his mouth to affect the nature of the conference and how seriously the conference would take matters of race.
So will the added diversity that Sonia Sotomayor would bring to the Supreme Court impact its dynamics and decision-making? Probably, but not simply because she will have to inject into group discussion the "female" or "Latina" perspective. If behavioral science research and past experience on the Court are any indicators, then the increased diversity will also impact the way the current justices process and evaluate the information before them.
It's not just those individuals in the demographic minority who are responsible for and shaped by the effects of diversity. It's all of us.
Yes, even Newt.
