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Sex on the Bench: Do Women and Men Have Different Moral Values?

Gender and judges: Do women and men have different moral values?

the law

With Barack Obama's nomination of Elena Kagan, the United States Supreme Court is likely to have more women than ever before. Some wonder whether the changing gender ratios could impact the Court's decisions. Research on sex differences in moral judgments-including judicial judgments-suggests an affirmative answer. In earlier blogs, I've discussed ways in which liberals and conservatives differ in moral values, as well as differences between theists and nonbelievers. It turns out men and women also tend to differ in moral outlook. A review of these differences may help us predict the future of the court and shed light on moral disagreements in our own lives.

This issue came to the fore in 1982, a few months after Sandra Day O'Conner became the first woman on the Court. In that year, psychologist Carol Gilligan published In a Different Voice, a watershed book arguing that women tend to make ethical decisions based on care, whereas men are more likely to adhere to rigid principles. Should we sacrifice an innocent person for the greater good? A principled answer might be, "Yes; the best action maximizes outcome," or "No; it's never acceptable to sacrifice the innocent." A caring answer might be more personal and contextual, "No, if the person is a friend; yes, if those who would benefit have already endured great hardship." Gilligan based her conclusions on interviews with young men and women, correcting the skewed perspective on moral development that had come down from pioneering work on that topic by, Lawrence Kohlberg who had interviewed only boys. Gilligan's hypothesis sparked a fierce debate, and initial evidence was mixed. In 1983, for example, Nona Lyons found that women were more than five times more likely than men to show care-based moral reasoning, but a year later, Lawrence Walker reviewed 108 studies of moral reasoning and found gender differences in less than 10% of them.

By the late 1980s, the evidence for gender differences in morality was regarded as weak, but now the tide is changing. A number of intriguing findings have been reported in the literature. Here are some highlights:

• Some studies show that women are more empathetic then men, and that this difference increases over child development (for example, there's a nice study showing this trend in Spain by María Mestre and collaborators).
• When looking at pictures of immoral acts, women's judgments of severity correlate with higher levels of activation in emotion centers of the brain, suggesting concern for victims, whereas men show higher activation in areas that might involve the deployment of principles (Carla Harenski and collaborators).
• When men watch wrongdoers getting punished, there is activation in reward centers of their brains, whereas women's brains show activation in pain centers, suggesting that they feel empathy for suffering even when it is deserve (Tania Singer and collaborators).
• Women are more likely to factor personal cost into decisions about whether to punish an unfair stranger, which suggests that women are more context-sensitive, and men adhere to principles (Catherine Eckel and Philip Grossman).
• Women were twice as generous in a game that involved dividing $10 with a stranger (Eckel and Grossman, again).
• Numerous studies have found that women are more likely than men to reciprocate acts of kindness (reviewed by Rachel Croson and Uri Gneezy).
• Women tend to be more egalitarian then men, and men are more likely to be either completely selfless of selfish (James Andreoni and Lise Vesterlund).
• Women are more likely than men to think it is okay to imprison a person on trumped up changes in order to stop violent rioting in the streets (Fiery Cushman and Liane Young). But women are also less likely to endorse diverting a runaway trolley down an alternate track where it will kill one person instead of five (John Mikhail).
• Women are more likely than men to blame a shipwreck survivor for pushing another survivor off a small plank of driftwood in order to survive (Stephen Stich and Wesley Buckwalter).
• Women are less likely than men to be politically conservative (Karen Kaufman; Terri Givens), though the reverse pattern was true in the 1950s (Felicia Pratto).

This range of findings resists an easy summary, but, on the whole, women seem to be more empathetic and more focused on the collective good. This is broadly consistent with Gilligan's suggestion that women are more likely than men to base moral decision an a care orientation, whereas men gravitate more towards principles.

I hasten to add that these differences are not necessarily the result of any hardwiring. Women's lives are different from men's, and they are more likely to experience discrimination and heavy burdens of childcare, which may result in greater sympathy for those who endure hardships. Men are socialized to be more "rational" and less "emotional," which may increase moral reasoning based on rigid principles.

The fact that men and women differ subtly in moral outlook does not entail that male and female judges would make different judgments. After all, judges are instructed to interpret the law, not deliver moral verdicts, and women who pursue legal careers might have different patterns of moral reasoning than the women poled in these studies. But if women in law do reason differently then men, that would be important to know. Women now make up more than half the student body at law schools, and gender ratios are becoming more equal on higher courts. The federal judiciary in the United States is still more than 70% male, but 50% of Obama's approved appointments have been women.

Evidence does suggest that gender matters on the bench. Unsurprisingly, female judges are more likely than male judges to rule in favor of plaintiffs alleging sex discrimination (Christina Boyd and collaborators), and in favor of female plaintiffs in disputes about property, alimony, and birth control (David Allen and Diane Wall). This pattern suggests that female judges are more protective of female interests. This may sound obvious, but it's actually somewhat inconsistent with findings outside the courtroom. Research on what has been called the chivalry affect suggest that men are often more helpful to women than women are to each other (Alice Eagly and Maureen Crowley). One might have predicted that male judges would show extra concern for female plaintiffs out of chivalry, but this does not seem to be the case.

A more surprising finding is that female judges are tough on violent crime. In a study of about 200 Pennsylvania trial judges, Phyllis Coontz found that:

• Female judges were more likely than male judges to find a male defendant guilty of assault, and they imposed longer sentences.
• Male judges' personal injury awards were more than twice as large as female judges', though female judges awarded three-times the damages for assault.

These results suggest that female judges regard assault as a more serious than male judges. This departs from the cliche that men are more stern and authoritarian than women, but is possible that woman condemn assault out of sympathy for the victim rather than a strong desire to punish the perpetrator. The finding that women are tough on violent crime fits with a general finding that female judges are more conservative than their male counterparts when it comes to criminal cases. They are more liberal, however, when it comes to civil liberties (Tajuana Massie and collaborators). Interestingly, female judges tend to adopt more extreme positions overall than men. On issues of criminal rights and economic liberties, they tend to favor views that are more liberal than same party male judges if they are appointed by Democrat, and more conservative than same party males if they are Republicans (David Allen and Diane Wall).

These patterns could have an impact on the Supreme Court. Tajuana Massie found that male judges shift slightly toward the female position when deliberating with female judges (Tajuana Massie again), and women, we have just seen, tend to defend some positions that are less moderate than men. It is worth noting that, in contrast to judicial deliberation, women in juries tend to shift towards men rather than the other way around (Tali Mendelberg). Predictions are difficult in this domain, and we know that party affiliation has a much bigger impact than gender. Still, the empirical evidence does suggest that changing gender ratios could yield a court that is more egalitarian, more concerned for victims of crime, and more protective of women.

In our own personal lives, we should also look out for cases where disputes across gender lines reflect a difference in moral orientation. If your male friends seem callous or your female friends seem overly sentimental, this may reflect that fact that male and female experiences can lead to divergent intuitions and insights. We might benefit from being open to both perspectives both on the bench and beyond.

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