Echoes of Exclusion: The Underrepresentation of Women in Congressional Testimony and Its Consequences for Judicial Decision-Making

Congressional hearing witnesses play a major role in the legislative process, providinginformation to committees to assist members and staff in crafting legislation. Recently, there hasbeen increasing focus on the impact of congressional witnesses on legislative outcomes,executive implementation of federal statutes, and corresponding judicial decisions. This hasraised questions as to the extent to which the underrepresentation of women and othermarginalized groups as congressional witnesses can be measured and how their lack ofrepresentation translates to inequitable outcomes across all branches of government. This workexplores the widespread use of congressional witness testimony in recent U.S. Supreme Courtopinions, reiterating that witnesses play a significant role in establishing the legislative history,which, in turn, is later relied upon in judicial decision making. In this Article, we quantify thereferences to congressional witnesses in U.S. Supreme Court opinions using a publicly availabledataset of opinions dating from 1789 through 2020. Although not surprising given our past work,we find that while the Court regularly references Congressional testimony in its opinions, womenas congressional witnesses are demonstrably underrepresented in these opinions. We argue thatthe ongoing underrepresentation of women as congressional witnesses will be moreconsequential to judicial outcomes following the Court’s decision in Loper Bright Enterprises v.Raimondo, 603 U.S. 369 (2024), overturning Chevron U.S.A., Inc. v. Natural Resources DefenseCouncil, Inc., 467 U.S. 837 (1984).