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Analysis

Judicial Diversity Is Not Just Important on the Supreme Court

State supreme courts rarely resemble the increasingly diverse communities they serve despite the broad impact of their rulings.

March 10, 2022
Gavel
Daniel Grill/Getty

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 rightsredis­trict­ingrepro­duct­ive rightsenvir­on­mental 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.