WHO SHAPES THE LAW? GENDER AND RACIAL BIAS IN JUDICIAL CITATIONS

Citation patterns signify the recognition and authority of others’ ideas (Hinkle Reference Hinkle2021) and allow us to understand factors that shape the diffusion of norms and policies. In common law systems, appellate judges are expected to cite binding legal precedent to guide their decisions, but there is no such expectation for nonbinding (“persuasive”) precedent, as citations to these rulings are purely discretionary. As such, we can learn a great deal about the influence of decisions, and those who author them, through studying these discretionary citations. With thousands of nonbinding opinions from which to choose, why are decisions by some judges better able to catch the attention of their peers and afforded more influence in the development of law?

The legal model of judicial decision-making suggests that decisions about whether to cite a nonbinding case are based on factors such as the quality of the reasoning or the legal importance of the cited case. Judges and their law clerks may also seek out published decisions by judges with strong educational or professional credentials. Yet, the research on citation bias in academic publishing points to a third explanation: implicit biases and socializing processes connect gender and racial identities to stereotypes about competence and authoritativeness.

In this letter, we analyze out-of-circuit citations to a sample of 2,000 published decisions from 2009 to 2016 to assess whether there is evidence of gender and racial disparities in discretionary citation practices by federal appellate judges. Because precedent from parallel courts is not binding, judges are free to ignore or cite out-of-circuit precedent completely at their discretion. Our results indicate a bias against citing majority opinions authored by women, especially women of color. We also find that the additional time and care put in by Black and Latinx judges in fully developing their opinions yield a lower rate of return than comparable efforts by white judges. These findings suggest that the conflation of prestige and social categories within the federal judiciary systematically limits the impact of judges from underrepresented groups to influence the law.

COMPETENCE, CUES, AND INFLUENCE

To understand how biases may affect legal influence, it is instructive to look to studies in other contexts to see how racial and gender cues affect evaluations of competence (e.g., Ellemers Reference Ellemers2018) and are linked to power structures that devalue the contributions of certain groups (Ridgeway Reference Ridgeway1991). In one line of inquiry, callback studies identify a persistent bias against job applicants with putatively Black or Latinx names (Quillian et al. Reference Quillian, Pager, Hexel and Midtboen2017), while audit studies in male-dominated STEM fields uncover a preference for male students, researchers, and employees over identically qualified women (Milkman, Akinola, and Chugh Reference Milkman, Akinola and Chugh2012).

These studies show that context matters. Where white men are overrepresented in powerful roles (e.g., law and politics), the association between gender, race, and authority will be strong (Rudman and Kilianski Reference Rudman and Kilianski2000). If gender and race operate as legitimacy cues, then white men may be accorded more prestige simply by virtue of their identity, compared with other groups (Berger et al. Reference Berger, Fisek, Norman and Zelditch1977). In the judicial context, gender and race affect official evaluations of judges: American Bar Association ratings and state judicial performance evaluations have been found to display bias against women and judges of color (Gill, Lazos, and Waters Reference Gill, Lazos and Waters2011; Sen Reference Sen2014). Critics note that law schools undermine the self-confidence of minoritized groups by ignoring their vantage points in core classes (Fischer Reference Fischer1996). This “cultivat[es] generations of lawyers, scholars, legal instructors, and judges who accept and promote the dominant white hegemonic view of procedure as neutral” (Pedro Reference Pedro2021, 162).

Studies of academic citations also show how the contributions of individuals from underrepresented groups receive less attention from their peers, affecting their influence in ways that can be applied to the legal context. An analysis of 1 million dissertations found that while women and underrepresented minorities are more likely to generate scientific innovation in their work, these innovations are less likely to be cited by other scholars compared with work by men, white, and Asian scientists (Hofstra et al. Reference Hofstra, Kulkarni, Galvez, He, Jurafsky and McFarland2020). Similarly, academic task forces have also uncovered citation disparities for research authored by women, Latinx, and Black authors, limiting the reach and influence of these groups’ intellectual contributions (e.g., APSA 2022).

Surprisingly, little work exists on gender and racial bias in judicial citations. Choi and Gulati (Reference Choi and Gulati2008) examine bias in out-of-circuit citations, but only for one year during a period when the federal judiciary was insufficiently diverse to assess racial bias (see also Landes, Lessig, and Solimine Reference Landes, Lessig and Solimine1998).Footnote ¹ More recently, a comprehensive study of binding and nonbinding precedent on search-and-seizure cases failed to find evidence of out-group bias in white judges’ citation patterns, but did reveal small in-group effects for racial minority and female judges (Hinkle and Nelson Reference Hinkle and Nelson2018). Shared social bonds, as well as educational and professional backgrounds, have also been linked to mutual citation patterns (Choi and Gulati Reference Choi and Gulati2008; Hinkle and Nelson Reference Hinkle and Nelson2018).Footnote ²

When there is discretion about whose nonbinding opinions to cite, concerns about prestige and reputation (Klein Reference Klein2002) likely come into play as judges and their law clerks draft the majority opinion with an aim toward persuading colleagues, litigants, and the reviewing court of its legal correctness.Footnote ³ Law clerks also have an interest in impressing their supervising judge when identifying precedents for citation, regardless of their own views about whom to cite. Stereotypes about competence have a reinforcing quality; that is, observing others’ signals about which judges have more authority and prestige solidifies the connection between status and social categories as law clerks are socialized into their work (Johnson, Dowd, and Ridgeway Reference Johnson, Dowd and Ridgeway2006). Moreover, algorithms used by legal databases such as Westlaw may exacerbate human biases by promoting opinions that have already been cited in search results (Hinkle and Nelson Reference Hinkle and Nelson2018), reinforcing a link between perceived status and citations.

DATA AND METHODS

To assess whether the legal influence of an opinion is affected by the author’s race and gender, we utilize a stratified, random sample of 30 published U.S. Courts of Appeals decisionsFootnote ⁴ per geographic circuit, per year from 2009 to 2016, and added data on discretionary citations to those decisions. We exclude citations to unsigned opinions, en banc cases, certification decisions, and opinions by district court judges, resulting in 2,228 observations.Footnote ⁵ Our approach differs from other studies on citation (e.g., Hinkle and Nelson Reference Hinkle and Nelson2018) in several respects. Notwithstanding the value of studying citation patterns in a single-issue area, we focus on discretionary citations across all issue areas to identify broad trends in policy influence across the federal appellate courts. Additionally, we focus on factors that attract attention to a judge’s work product, rather than reciprocal factors that link a citing judge with a cited judge.

As such, the dependent variable is the number of times that the majority opinion is subsequently cited in out-of-circuit opinions over the five-year period after the initial opinion was decided.Footnote ⁶ That is, if the initial case was decided by the 1st Circuit on February 15, 2013, we counted the number of cases decided by the 2nd–11th and D.C. circuits between February 16, 2013, and February 15, 2018, that cited the original 1st Circuit Case.Footnote ⁷ Because this is a count variable with strong evidence of overdispersion, we estimated negative binomial regressions and included year-level unconditional fixed effects and standard errors clustered by circuit.

To test whether an authoring judge’s sex or race affected the degree to which subsequent courts draw on their opinions, we utilize the Federal Judicial Center database to code Female Judge (0,1) and Non-white Judge (0,1). The latter was coded 1 if the judge was listed as African American or Hispanic/Latinx and 0 if the judge was listed as white. Because prior work suggests that Asian Americans face different stereotypes (e.g., the “model minority”) and are not disadvantaged in citations (APSA 2022; Hofstra et al. Reference Hofstra, Kulkarni, Galvez, He, Jurafsky and McFarland2020), we exclude the small number of majority opinions by these judges, though our findings do not change with their inclusion. (For more discussion, see Supplementary material OA3.)

Because well-reasoned opinions are more likely to influence judges in other courts (Hume Reference Hume2009), we follow previous work (Moyer et al. Reference Moyer, Szmer, Haire and Christensen2021) that relies on a novel measure of how well an opinion is grounded in the case law. This indicator, Deep Cites, is a Westlaw-generated measure of the number of precedents discussed in the source opinion using at least two paragraphs of text. Our model also includes controls for many other influences on citations, including indicators of the opinion author’s background and elite status identified in other works (e.g., Holmes Reference Holmes, Hernandez and Navarro2019) and controls for readability, issue salience, and ideological divisions on the authoring panel. For more information on variables, see Table 1 and Supplementary material OA1.

Table 1.

Independent Variables

Note: See Supplementary material OA1 for more details.