An often-reprinted L.A. Times article about last week’s Wal-Mart decision noted that the Justices split “largely along gender lines” on one of the issues: The majority, who had a position that was least open to a combined class-action lawsuit by as many as 1.5 million women who were allegedly discriminated against by Wal-Mart, consisted of five male Justices, and the dissent consisted of three women (Justices Ginsburg, Sotomayor, and Kagan) and one man (Justice Breyer).
Given this, I should note that in the violent video game case — which may also be cast as raising gender issues, both because violent video games are stereotypically seen as a male pastime much more than a female pastime, and because some of the games seemed to involve depictions of sexual violence against women — the Justices also split “largely along gender lines” (though slightly less so). The majority, which held that such games were broadly protected, consisted of three women (Justices Ginsburg, Sotomayor, and Kagan) and two men (Justices Scalia and Kennedy), and the concurrence in the judgment and the dissents, all of which were open to some substantial regulation of such games, consisted of four men (Chief Justice Roberts and Justices Thomas, Breyer, and Alito).
Of course the results in the violent video game case likely didn’t have much to do with the Justices’ sex, but rather with the Justices’ underlying sex-neutral views about free speech protection. But I expect the same is true as to the Wal-Mart decision, where the Justices’ general ideological views about class action law likely tracked the result much better than their sex. (It was no accident, I think, that Justice Breyer joined those Justices who shared his ideology in Wal-Mart rather than those Justices who shared his sex; and that, though the logic of the Wal-Mart case applied equally to race discrimination and to sex discrimination, Justice Thomas joined those Justices who shared his ideology in Wal-Mart rather than those who, like him, were members of groups that have long been seen as the primary beneficiaries of antidiscrimination law.)
Naturally, a Justice’s sex might well influence his or her vote. Justices are human, and human beings are sometimes affected by such matters. But it seems to me that such influences are often quite overstated, and that the Justices’ ideology is generally a much stronger influence on their votes.