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How Justice Marshall Affected the Court?s Deliberations Just by Sitting There

By Jack M. Balkin

Much of the discussion sparked by the Sotomayor nomination has focused on whether race, gender and ethnicity should shape an individual judge?s jurisprudence. But a separate question has received little attention?how these attributes of individual judges affect the deliberative process. As I've argued in previous posts below and here, one value of the deliberative process is that it increases the odds that individual assumptions about how the world works will be subject to challenge, or at least that no judge will assume his or her own perspective is universal.

I was glad to see Adam Liptak?s article in today's New York Times focusing on the impact of diversity on the deliberative process. Liptak cites a study by Washington lawyer Jennifer Peresie concluding that the presence of a female judge on a three-judge panel in a sex discrimination or sexual harassment case significantly increased the likelihood that the male judges would find for the plaintiff. He also cites a study by Tom Miles and Adam Cox concluding that the presence of an African-American judge on a three-judge panel in a voting rights case significantly increased the likelihood that a white judge on the panel would find for the plaintiff. As Peresie cautioned, these findings about three-judge courts can?t simply be extrapolated to a nine-judge court (particularly the Supreme Court, which has a different set of institutional constraints). But they do point to the importance of examining how heterogeneity affects the deliberative body as a whole.

The literature on the dynamics of judicial deliberation is surprisingly sparse. Much of what we?re learning about the dynamics of deliberation in the legal context comes from the study of juries. (Speculatively, this may be because the very notion that judicial interpretation is influenced by background or life experience offends the conventional wisdom that the rule of law transcends individual interpretation). But these jury studies contain some fascinating findings about how racial composition affects the deliberative process.

Liptak quotes Justice Scalia observing about Justice Marshall in conference, ?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.? A series of studies by Sam Sommers, a psychologist at Tufts (often in conjunction with Phoebe Ellsworth), help explain this dynamic. In one 2006 study (involving a mock jury) Sommers found, as expected, that heterogeneous groups deliberated longer and considered a wider range of information than did homogeneous groups. But this effect was not simply due to the contributions of the black participants. In fact, it occurred even when the black participants didn?t contribute to the discussion at all. ?White participants were largely responsible for the influence of racial composition, as they raised more case facts, made fewer factual errors, and were more amenable to discussion of race-related issues when they were members of a diverse group.?

This effect seems to depend partly on the fact that the participants push themselves to formulate better arguments when they know they will have to justify them. But in addition, it reflects the fact that people generally try to correct for implicit attitudes of racial or gender bias when reminded to do so. A couple of the many questions for further study: How would the dynamics Sommers identified play out when other implicit biases are triggered?biases that people are not as motivated to avoid? How would the dynamics Cox and Miles and Peresie identified play out in cases in which race and gender played a role, but not as explicit a role? Perhaps the current national discussion will lead to more much-needed empirical work on the dynamics of judicial deliberation.

Full post as published by Balkinization on May 31, 2009 (boomark / email).