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2 J.L. & Empirical Analysis 2 (2025)

handle is hein.journals/jnlolwadem2 and id is 1 raw text is: Original Research Article Covering: Mutable Characteristics and Perceptions of Voice in the U.S. Supreme Court Daniel L. Chen' Journal of Law and Empirical Analysis 2025, Vol. 2(1) 2-32 © The Author(s) 2025 Article reuse guidelines: sagepub~com/iourials-peirnissions DOI: 10.1 177/2755323X25 1340759 journals.sagepub.com/home/lex S sage Yosh Halberstam2'*, and Alan Yu3 Abstract The growing emphasis on fit as a hiring criterion introduces the potential for a new, subtle form of discrimination (Bertrand & Duflo, 2017). Analysis of 1,901 U.S. Supreme Court oral arguments from I998 to 2012 documents that voice-based snap judgments predict court outcomes. Male petitioners who rank below median in perceived masculinity are 7 percentage points more likely to win. This negative correlation between perceived masculinity and winning cases in the Supreme Court is more pronounced in masculine industries. Perceived femininity of women lawyers also predicts court outcomes. Democrats favor men with less masculine-sounding voices. Perceived masculinity explains additional variance in Supreme Court decisions beyond what is predicted by the best random forest prediction model. A de-biasing experiment using information and incentives in factorial design is consistent with misperceptions and taste for masculine-sounding lawyers explaining the negative correlation between perceived masculinity and Supreme Court wins. Keywords gender, identity, speech, judicial decision making JEL Codes J15, J78, K41 1. Introduction Courts routinely distinguish between immutable and mutable characteristics, and between being a member of a legally protected group as opposed to behavior associated with that group, which is not protected (Yoshino, 2006). Legal theorists suggest that discrimination, once aimed at entire groups, now aims at subsets that refuse to cover, that is, to assimilate to dominant norms (Goffman, 1963). Mutable characteristics have recently entered economic models of identity formation (Austen-Smith & Fryer, 2005; Bertrand & Duflo, 2017; Neurnark, 2018). For example, African-Americans cannot be fired for their skin color, but they can be for wearing corn- rows. This distinction between being (immutable) and doing (mutable) incentivizes assimilation. Should we understand such legally sanctioned differential treatment to be harmful? Are individuals punished for not conforming when it comes to mutable characteristics (Yoshino, 2000)? Building on Kenji Yoshino's notion of covering, we use the phrase punish non-conformity to capture how society might in- directly burden individuals whose voices deviate from a perceived norm. The primary focus of our empirical analysis is judicial outcomes-namely, which attorney prevails at the Supreme Court-this emphasis motivates a selection puzzle rooted in 'Toulouse School of Economics, Institute for Advanced Study in Toulouse, University of Toulouse Capitole, Toulouse, France 2Economics Department, University of Toronto, Toronto, ON, Canada 3Linguistics Department, University of Chicago, Chicago, IL, USA *Senior Financial Economist, Federal Deposit Insurance Corporation Corresponding Author: Daniel L. Chen, Toulouse School of Economics, Institute for Advanced Study in Toulouse, University of Toulouse Capitole, Toulouse, France. Email: daniel.chen@iast.fr O Creative Commons Non Commercial CC BY-NC: This article is distributed under the terms of the Creative Commons Attribution-NonCommercial 4.0 License (https://creativecommons.org/licenses/by-nc/4.0/) which permits non-commercial use, reproduction and distribution of the work without further permission provided the original work is attributed as specified on the SAGE and Open Access pages (https://us.sagepub.com/en-us/nam/open-access-at-sage).

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