New Brennan Center data shows that across the country, state supreme court benches fail to reflect the racial, ethnic, and gender diversity of the populations they serve. Building and sustaining a diverse judiciary is necessary to ensure a strong and effective democracy. Research demonstrates that diversity among judges bolsters public confidence in the courts, increases political engagement, and enriches judicial deliberations.
The Brennan Center has been tracking diversity on state high court benches since 2019. While some progress has been made, many states continue to lack diversity on several key metrics.
Overall, people of color only make up 20 percent of state supreme court benches despite being over 40 percent of the United States population. In 18 states, there are no justices who identify as a person of color, including in 12 states where people of color make up at least 20 percent of the population. Women hold only 42 percent of state supreme court seats. Six states have only one woman on the state supreme court bench, and the South Carolina Supreme Court has none.
There are a multitude of factors that lead to these disparities in representation on the bench. People of color are underrepresented across the legal field: the 2022 ABA Profile of the Legal Profession found that lawyers of color make up only 19 percent of the profession. Attorneys of color and women also often face additional barriers to leadership positions. For example, in 2021, almost 28 percent of law firm associates were people of color, but just under 11 percent of law firm partners were people of color. Explicit and implicit biases exist throughout the path to the bench.
One frequently overlooked factor contributing to racial disparities on high court benches is the method used for judicial selection. In 2019, the Brennan Center analyzed nearly 60 years of data on how state supreme court justices first reached the bench, finding that “people of color have consistently made up a higher proportion of appointed, as compared with elected, ﬁrst-time supreme court justices.” This was true even in states that use judicial elections as their primary method of judicial selection. Often in those states, justices of color were more likely than white justices to first reach the bench via interim appointments by the governor when a vacancy opened in the middle of a term. From 1960 to 2018, in states that use contested elections to select justices, four out of five nonwhite justices first reached the bench via appointment, while over half of all white justices first joined the bench through an election.
Among other things, the analysis found that there were fewer people of color in candidate pools to begin with, and when candidates of color did run, they were more likely to face challengers and less likely to win. Candidates of color also faced fundraising disparities and disparities in outside spending support. While the research shows that these barriers make it particularly difficult for people of color to reach state supreme court benches via elections, states with all different forms of judicial selection are still falling short in terms of diversity.
This pattern is consistent with the data from the past year. This year, of the 32 new justices to join state high court benches, only 7 are people of color. All 7 of the nonwhite justices who joined state supreme courts this year were appointed, not elected, including in three states that use judicial elections. These appointments included several milestones: Justice Patricia Lee is the first Black woman and the first Asian American woman to serve on the Nevada Supreme Court, and Justices Lisa Holder White and Joy Cunningham are the first two Black women to ever serve on the Illinois high court.
In Michigan, Justice Kyra Harris Bolden, the first Black woman to serve on the Michigan Supreme Court, ran for election to the high court bench in 2022 and lost to two white incumbent justices. She was subsequently appointed by Gov. Gretchen Whitmer to fill a newly vacated seat. The eight new justices who were first elected to their state high courts this year in Alabama, Illinois, Kentucky, Nevada, and North Carolina are all white.
Chief Justice Mary Jane Theis of the Illinois Supreme Court told Capitol News Illinois, “In my experience . . . when there are people with different backgrounds and different life experiences, they bring something to the table, they enrich the discussion, they enrich the opinions that we make.”
To achieve greater diversity, we should strengthen pipelines to the bench within law schools and the legal profession, break down barriers to candidates from underrepresented backgrounds, and consider reforms to all judicial selection methods to make them more equitable and inclusive.