Barristers appearing before the Supreme Court team up in ways which mean that same-sex legal teams are much more likely than if barristers teamed up essentially by chance, or by taking a blind draw from a pool of lawyers, our research has found (Steven Vaughan writes).
We cannot say whether this pattern of homophily – of like pairing with like – is the result of conscious or unconscious decisions.
Previous studies of the legal profession have often mentioned how powerful it can be when women take on a role mentoring other women. If an all-female legal team forms, is that a form of mentoring? If so, is that the kind of homophily that the profession and society should be worried about, or the kind that should be encouraged?
If, as the literature suggests, “difference makes a difference”, and if having different voices in teams of barristers before the Supreme Court is a potential strength – not just for clients but also for development of the law – then the homophily that we have found among legal teams should be of concern.
Our research has implications for increasing the presence of women at the upper reaches of the Bar. Let us suppose that our findings generalise from the UK Supreme Court to other levels of the judicial hierarchy.
There is a certain Catch-22 logic to our findings. 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, which in turn helps with areas such as application for silk and elevation to the judiciary.
But women only reach senior positions after being juniors. If half the senior barristers were women, then a gender preference would not be so objectionable. However, given that other research suggests that gender parity at the top of the Bar is unlikely in the foreseeable future, further progress relies, essentially, on exceptional women breaking through.
Given our data, perhaps the next time justices of the Supreme Court notice an all-male, four-strong team appearing before them, they might ask why this is the case and why there were no equally meritorious female barristers to join them. That would be a question well worth asking.
Steven Vaughan is a senior lecturer at the University of Birmingham law school. He co-authored this article with Chris Hanretty of the University of East Anglia