Birds of a feather… Exploring gender homophily in the Supreme Court bar

A guest post from Chris Hanretty, School of Politics, University of East Anglia and Steven Vaughan, Faculty of Laws, UCL

Most of us, for reasons conscious and subconscious, associate more with people who are like us in certain respects.

This homophily, or preferential attachment to similar others, is very often innocuous. As academics, we are much more likely to associate with other academics than are non-academics. Yet so far, this homophily has not had any grave consequences (save perhaps for those non-academics around us who are bored by shop talk).

Homophily matters much more for people who are in positions of power, who may choose to surround themselves with – or grant lucky breaks to – others who resemble them. Homophily becomes particularly concerning when people in powerful positions are disproportionately of a certain type, and where the homophily in question is related to ascriptive characteristics such as gender, race, or social background.

Barristers (and advocates, and solicitor-advocates) who appear before the Supreme Court are people in positions of power, both in an absolute sense and relative to other members of the profession. Since barristers rarely appear alone before the Supreme Court, such barristers can bestow significant opportunities on other lawyers by pairing up with other lawyers. These “lucky breaks” may go to other, similar lawyers: that is, they may be characterised by homophily of one kind or another.

Although there are many different kinds of homophily, gender homophily should be of particular interest to lawyers given the historic and continuing male dominance of the senior reaches of the several British bars. If (say) male senior counsel are disproportionately likely to team up with other men, and if having appeared before the Supreme Court forms part of the legal cursus honorum, then women will reach the top end of the profession at lower rates than men.

In an article recently published in Public Law, we investigated the extent to which “team formation” on the Supreme Court is characterised by gender homophily. We collected information on the counsel who appeared before the Supreme Court in cases decided by the court between its establishment in 2009 and the summer of 2015. We did this by consulting the lists of lawyers which feature on the second page of each judgment handed down by the court. Altogether, we identified 1,292 individual lawyers in 470 cases. We then identified the gender of each individual lawyer.

With this information, we were able to carry out a series of increasingly complex statistical tests for gender homophily in team formation. The simplest of these tests involves a comparison between two types of two-member teams: teams headed by a male barrister, and teams headed by a female barrister.

  • When a male barrister headed the team, 454 of the 615 more junior barristers (74%) were also male.
  • When a female barrister headed the team, 50 of the 95 more junior barristers (53%) were male.

Although both types of team are more likely than not to have male juniors, the proportion of male juniors is much higher when the team is headed by a male barrister. This difference is also statistically significant: if we were to repeat this exercise many times, we would be confident that the proportion of male-led teams with male juniors was higher than the proportion of female-led teams with male juniors.

This simple comparison provides evidence that team formation on the UK Supreme Court is characterised by gender homophily. However, this pattern is compatible with a number of different mechanisms. In the remainder of our article, we discuss two particular mechanisms.

The first of these mechanisms is selection from within an area of law. Different areas of law have different gender splits. Female barristers are, for example, more prevalent in family law than they are in commercial law. This is true both generally and in our Supreme Court data. The chances that junior counsel will be female are therefore higher for family law cases than they are for commercial cases. By failing to take this into account, we may have created an artificial association between the gender of the more senior barrister and the gender of the more junior barrister. Homophily would still exist, but it would exist only in virtue of the way that barristers of different genders sort into different areas of law.

The second mechanism – selection from within one’s own chambers – is similar. Different chambers also have different gender splits. Counsel from the same chambers may be more likely to form teams than counsel from different chambers. Once again, failing to take this into account may create an artificial association. It would then become important to explain why some chambers have disproportionate numbers of male or female barristers.

Neither of these mechanisms, when properly accounted for, does much to reduce the role played by homophily. Whether or not we control for the area of law or the gender composition of the senior barrister’s chambers, male senior barristers are one and a half to two and a half times more likely to have a male junior compared to female senior barristers.

Does this matter?  We think it does. On the basis of our findings, female barristers are in a Catch-22 position: women do better as juniors when other women are in senior positions (because the seniors can grant the juniors access to more complex cases and litigation in the highest courts);  but women only reach senior positions after first being juniors. If half of senior barristers were women, then gender homophily would not be so objectionable. However, given that research by the Bar Council suggested that gender parity at the Bar as a whole is unlikely to ever be achieved (and parity at the top end of the Bar is unlikely in the foreseeable future), further progress towards gender equality at the Bar relies, essentially, on exceptional women breaking through.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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One Response to Birds of a feather… Exploring gender homophily in the Supreme Court bar

  1. Andrew says:

    Like a lot of academics’ blogs this one leads to the question: And then what? Litigants choose their counsel – as they see fit. You cannot sensibly apply the law of discrimination to self-employed people.

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