Are the Media’s Representations of Supreme Court Nominees Gendered?

For the first time in history, three women sit concurrently on the United States Supreme Court, a fourth recently retired. While the fact that women now represent one-third of the nation’s highest judicial body suggests the attainment of formal equality, women remain significantly under-represented in major leadership roles within the legal profession. For example, women serve as managing partners in only six percent of law firms, and less than fifteen percent of equity partnerships (prestigious positions reserved for those holding ownership interests in law firms) belong to women. Women represent less than twenty percent of female general counsels in the Fortune 500, and women comprise barely twenty percent of law school deans. When factoring in race and ethnicity, the picture becomes even more grim. Our research seeks to understand this disparity by examining the media’s depiction of Supreme Court nominees during the confirmation process.

Our research reveals a subtle but pervasive and striking gender imbalance in the treatment of Supreme Court nominees by print journalism and online media. While women are breaking the glass ceiling by reaching positions once thought unattainable, they are still subject to significant stereotypes and bias. Headlines like, “Then Comes the Marriage Question” in the New York Times or “The Supreme Court Needs More Mothers” in the Washington Post are just a sampling of those that emerged during the nomination period for Elena Kagan and Sonia Sotomayor, two highly accomplished, well-qualified nominees to the Court. Criticism leveraged against Kagan and Sotomayor regarding beauty, fashion sensibility, marriage, motherhood status, and sexuality has accompanied the usual assessment of qualifications and experience.

The gendered nature of the headlines and related photographs, even the particular location of the article about a nominee on the newspaper page, led us to ask a number of questions. Is there a difference in the quantity of media coverage between male and female nominees? What are the similarities and differences in subject matter of news coverage for nominees? What sort of introduction do they receive in the first articles that appear after their nomination is announced? How might disparate treatment in media coverage be emblematic of the gender imbalance that persists in other positions of power within the legal profession or the employment realm more broadly?

In an effort to answer these questions, we created a unique dataset for conducting comprehensive quantitative and qualitative analysis of print and online media for every Supreme Court nominee since Justice Powell, who was nominated and confirmed in late 1971, and sworn in during the first weeks of 1972. We selected this starting point mindful of the feminist movement’s influence at the time. (The Equal Rights Amendment was passed by both houses of Congress in 1972, and Roe v. Wade was reargued before the Supreme Court in 1972, with the decision handed down in January 1973.) Using the study findings as a modern lens through which to view gender and power in the legal profession, our project assesses bias, stereotypes, tokenism, and double-binds or double-consciousness experienced by female lawyers as they strive to attain positions of power in the legal profession and beyond. We conclude that the media depiction of Supreme Court nominees offers an alternative, valuable mechanism for evaluating gender equality in the legal profession’s pipeline to power.

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