The Underrepresentation of Women in Congressional Testimony and its Consequences for Judicial Decision-Making

Caroline L. Bruckner, Elizabeth A. Keith, Karen O'Connor & Collin Coil, Echoes of Exclusion: The Underrepresentation of Women in Congressional Testimony and its Consequences for Judicial Decision-Making, 16 ConLawNOW 187 (2025).

Congressional hearing witnesses play a major role in the legislative process, providing information to committees to assist members and staff in crafting legislation. Recently, there has been increasing focus on the impact of congressional witnesses on legislative outcomes, executive implementation of federal statutes, and corresponding judicial decisions. This has raised questions as to the extent to which the underrepresentation of women and other marginalized groups as congressional witnesses can be measured and how their lack of representation translates to inequitable outcomes across all branches of government. This work explores the widespread use of congressional witness testimony in recent U.S. Supreme Court opinions, 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 the references to congressional witnesses in U.S. Supreme Court opinions using a publicly available dataset 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 women as congressional witnesses are demonstrably underrepresented in these opinions. We argue that the ongoing underrepresentation of women as congressional witnesses will be more consequential to judicial outcomes following the Court’s decision in Loper Bright Enterprises v.
Raimondo, overturning Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.