This article first appeared in Slate.
When President Joe Biden nominated Judge Ketanji Brown Jackson to the Supreme Court, he commented, “For too long, our government, our courts haven’t looked like America.” That’s certainly true on the Supreme Court, where Jackson’s confirmation as the first Black female justice would be historic. And if you zoom out further and look to the states, the disconnect between courts and the diversity of America’s communities is even more stark.
Consider state supreme courts, which sit at the top of state judicial systems and typically provide the final word in interpreting state laws and constitutions. These courts are the sleeper seats of power in the American judiciary. Most Americans think of the Supreme Court as the ultimate arbiter in defining our legal rights. But state supreme courts can interpret their own state’s laws to go much further than the protections we enjoy under federal law. Their rulings can and do have broad impact—over voting rights, redistricting, reproductive rights, environmental protection, and even billion-dollar consumer protection verdicts.
Rarely, though, do these powerful bodies resemble the increasingly diverse communities they serve. Each of our 50 state supreme courts has between five and nine justices, and in 22 states, that bench is all white—including in 11 states where people of color make up at least 20 percent of the population.
This includes states like Kansas and Alaska, which have never had a person of color sit on their high court bench in their entire history. And states like Pennsylvania, which had two justices of color on its high court in 1988, including the nation’s first Black female state supreme court justice, but whose high court today is all white. Only seven states have a supreme court bench where the percentage of people of color is higher than their representation in the state’s population as a whole.
There is also a striking lack of gender diversity. Female justices hold only 39 percent of all seats on state supreme courts. And at a moment when the U.S. Supreme Court will soon see four women in its ranks, 12 states have only one woman on their state supreme court bench. Thirty states don’t have any women of color serving as justices.*
This is a cataclysmic loss for the legal system, and for everyone who turns to courts to protect their rights and give their cases a fair shake. As federal District Court Judge Edward Chen pointedly observed: “How can the public have confidence and trust in such an institution if it is segregated—if the communities it is supposed to protect are excluded from its ranks?”
And the public has good reason to lack confidence in a court that looks nothing like its community. Research suggests, for example, that judges from different backgrounds often rule differently from one another in certain categories of cases, such as those involving civil rights. Moreover, having a woman or person of color on an appellate panel can affect how their colleagues vote as well. Another study found that female judges were more likely to identify gender bias in their courtrooms and intervene.
There are countless factors driving states’ homogeneous benches, many of which track why women and people of color also face glass ceilings in federal judgeships and other leadership positions in the law. For example, while people of color made up about 20 percent of first-year law students as early as 1993 (and are over 30 percent today), only 9 percent of all law firm partners were people of color in 2018. Implicit bias, harassment, and discrimination are well documented in the legal profession, as are racial and gender disparities in access to professional networks and mentorship.
State courts also stand out because many states rely on elections to fill high court benches—unlike federal courts, where judges are nominated by the president and confirmed by the Senate. Twenty-two states use elections to put justices on the bench. These are often high-profile, brass knuckles affairs, requiring multimillion-dollar campaigns—and they have posed unique hurdles for candidates of color.
A Brennan Center study of state supreme court elections found that candidates of color raise less money, are challenged more often, win less frequently, and receive less support from outside interest groups than white candidates. (We didn’t look at lower court elections, which may have different dynamics.) In states that use supreme court elections, interim appointments by governors have been the most common path for diverse candidates to take office.
These findings underscore that states need to take a close look at how they structure judicial selection—including considering alternatives to elections like appointments vetted by judicial nominating commissions, or adopting public campaign financing, a proven mechanism for opening the door to diverse candidates. And for all our courts, we need continued attention to the importance of judicial diversity and a commitment to build a diverse bench.
Far too slowly, the U.S. Supreme Court is beginning to look more like America. We must give the same attention to judicial diversity in all our courts.
