Identity Judging

Occasionally, I hear people arguing that judges’ decisions are strongly influenced by their sex, race, and so on — “of course, this female judge will rule against the accused rapist / pornographer / sexual harasser / etc.; she’s a woman.” And indeed I suspect that judges’ identities do influence their judgments in some measure; that’s a normal human tendency, and judges are humans. But such claims are, I think, often overstated, and this morning’s ruling in Williams v. Illinois offers a good illustration.

In Williams, a woman was raped and robbed, and the defendant was caught with the help of a DNA test conducted on the semen left over after the attack, though there was other evidence, too: Once the DNA test pointed at the defendant (who hadn’t earlier been under suspicion), “the police conducted a lineup at which [the victim] identified petitioner as her assailant.” But the DNA evidence was important.

The evidence, though, was presented by an expert who was working from a DNA profile of the semen, and the private forensic lab analyst who actually produced the profile did not testify in court. The legal question in the case was whether the Confrontation Clause barred the introduction of such evidence, given that the person who had personal knowledge of how the profile was produced was not present in court to be cross-examined. This is a complicated and tested question of Confrontation Clause law, on which the Court split 5-4 as to the bottom line (which was that the state wins) and 4-1-4 on the rationale.

But the point of the case for this post is that three of the four dissenters, who voted in favor of a result that would have likely given the convicted rapist a new trial, were the three women Justices (Ginsburg, Sotomayor, and Kagan); the fourth was Justice Scalia. And the majority, who voted to reject the rapist’s claim, were all men (Chief Justice Roberts, Justices Kennedy, Breyer, and Alito, and Justice Thomas, who wrote the separate opinion concurring in the judgment).

Moreover, this was a case in which a decision for the defendant would indeed disproportionately — though not entirely — favor men: Men commit the overwhelming majority of violent crimes for which DNA evidence is relevant, and the dissent’s opinion would make it at least somewhat harder to prosecute such crimes. Moreover, while DNA evidence is useful in many cases other than rape cases, my sense is that rape cases are a substantial chunk of the cases in which DNA evidence is used, and the overwhelming majority of victims in rape prosecutions are women. Yet despite this the women Justices voted for a pro-criminal-defendant rule.

Of course, this doesn’t tell us whether the Justices — either the men or the women — voted properly, and it certainly doesn’t preclude the conclusion that the Justices voted in accordance with their ideologies: Justices Ginsburg, Sotomayor, and Kagan are liberal Justices from the generally more civil libertarian wing of liberalism (Justice Breyer is a liberal from the wing that generally takes a narrower view of Bill of Rights protections). Chief Justice Roberts and Justice Alito might be seen as conservative Justices from a generally more pro-government wing of conservatism than Justices Kennedy, Scalia, and Thomas (though that’s pretty complicated and uncertain, and though Justice Kennedy takes a narrower view of the Confrontation Clause than does Justices Scalia and, in many cases but not this one, Justice Thomas). And, as I said, none of this precludes the claim (which I think is likely true in some situations) that Justices’ view are sometimes influenced by what sex they are.

But it does suggest that we should be cautious of such claims, especially when sex is framed as a strong predictor. We had seen this before in some past Confrontation Clause cases, such as Hammon v. Indiana, in which Justice Ginsburg voted for a rule that was predictably especailly favorable to criminal defendants in domestic violence cases. But it’s especially striking now when there are three women Justices on the Court, and all of them voted for the convicted rapist in a closely divided case.

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