Gender and Justice: How Women on the Supreme Court Decide Fourth Amendment Cases

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (U.S. Const. amend. IV).

The Fourth Amendment to the Constitution was designed to protect U.S. citizens from abuses of privacy by government power. In Fourth Amendment cases, justices are tasked with deciding whether a defendant’s right to privacy was violated or whether an illegal search and/or seizure occurred. But how are these decisions made, and does broader representation on the court alter such decisions?

McCall and McCall (2007) sought to answer this question in their review of 718 Fourth Amendment cases decided at the state court level between 1980 and 2000. They hypothesized that an increase in the number of women on the judicial panel would increase the number of votes protecting defendants’ Fourth Amendment rights. They compared cases decided between 1980-1990 (3% women) and 1991-2000 (26% women) to determine whether the majority found that the Fourth Amendment was violated (i.e., for the defendant) or not (i.e., against the defendant).  

As expected, the justices found more Fourth Amendment violations when there were more women on the court. In fact, a defendant’s likelihood of winning increased from 50% to 79% when the panel included more women. However, women tended to vote against the defendant more often in years when they were slated for re-election. Unfortunately, researchers were unable to examine the role of having more than one woman on the panel, as there were few cases involving two or more female justices. Therefore, researchers suggest that it is important to have a critical mass of representation to fully protect constitutional rights.

Reasonable expectations of privacy are the bedrock of the Fourth Amendment. Therefore, to protect our autonomy, we need to ensure that courts are representative. It is important to have a critical mass of women and other minority justices to ensure we are protected in our right against unreasonable searches and seizures.