Applications for the three positions on the UK Supreme Court are currently being considered by the Appointments Commission. The process will result in the appointment of two Supreme Court Justices and a new President of the Supreme Court, replacing Lord Neuberger, Lord Toulson and Lord Clarke.
Whilst the appointments are strictly on merit, the current Supreme Court President is quoted as saying that “I am not one of those people who optimistically thinks that if we just sit back it will all sort itself out and the judiciary will eventually include many more women and ethnic minorities”. This philosophy is evident in the recruitment process, with a new website, a recruitment drive targeting less conventional applicants and an opportunity for insight visits. All of these initiatives are designed to encourage a wide range of applicants and potentially enhance the diversity of the Supreme Court Bench. But will it be effective? It may be, but only if those involved in the short-listing process recognise their role in reducing the potential for implicit bias in the final decision.
Since the opening of the Supreme Court in 2009, the bench has been populated by eleven male and one female Supreme Court Justice. Indeed despite the constant recognition of the importance of judicial diversity and the replacement of eight of the Supreme Court bench (75%), the gender balance has not changed. There has also been little change in other demographic variables, there is no BME Supreme Court Justice and all but two Supreme Court Justices attended independent fee paying schools and all but two went to Oxford or Cambridge.
Supreme Court Justices are not appointed by the Judicial Appointments Commission, they are appointed by a five member selection commission which is convened when a vacancy arises. Prior to the Crime and Courts Act 2013, the selection commission was chaired by the President of the Supreme Court, and the panel consisted of the Deputy President of the Supreme Court and representatives from the Judicial Appointments Commission from Northern Ireland, Scotland and England and Wales. The significant influence of two members of the Supreme Court on a panel of five was recognised and the role of the Deputy President was removed, notably this coincided with the appointment of Lady Hale as Deputy President. It was argued that the removal of the second Supreme Court Justice from the selection commission would enhance diversity.
However, the influence of the senior members of the judiciary extends beyond the five member appointments commission. The senior judiciary are typically consulted at the most important stage of the selection process, the short-listing. Those consulted include the Lord Chief Justice of England and Wales (who sits on the panel), the Master of the Rolls, the President of the Court of Session, the Lord Chief Justice of Northern Ireland, the President of the Queen’s Bench Division, the President of the Family Division, and the Chancellor of the High Court, all of whom are men.
Decades of social cognitive research exists on how gender stereotypes lead to assumptions, both implicit (unconscious) and explicit (conscious). Indeed, these biases have served to impede women’s advancement in male-dominated fields or male-sexed typed jobs, a term applied to positions historically or predominantly occupied by men. By this definition, a Supreme Court Justice is a male-sexed type position. Isaac et al. (2009) performed a meta-analysis of 130 studies which examined decision making in appointments and all but one confirmed that male applicants are evaluated more positively than female applicants for employment in a male sex-typed role. This is a significant problem, when combined with the results from work by Heilman (1980) which demonstrated that when women composed 25% or less of the applicants, female applicants were viewed as less qualified than male applicants. These studies are, of course, limited by the subjects and the abstract decision, but they highlight the potential significance of implicit bias in short-list decision making. The research is less clear on how this could be mitigated, although Heilmen and Martell (1986) demonstrated significant mitigation if the decision makers were alerted to examples of women excelling within the field, this unfortunately does not apply when there is only a single female example. The evident success of Lady Hale on the Supreme Court bench will not mitigate the potential short list bias.
Is there any hope? Whilst the legislation is clear that appointments to the Supreme Court should be based on merit and merit alone, there is a caveat where there are two persons of equal merit, in this situation the Crime and Courts Act (2013) does not prevent the commission from “preferring one of them over the other for the purpose of increasing diversity within the group of persons who are the judges of the Court.” Perhaps, when engaged in the short-listing process, those involved would consider this wider conception of merit, one which incorporates diversity. In doing so, those creating the short-list may have the opportunity to mitigate the potential for implicit bias in the final decision and enhance the diversity of the Supreme Court bench.