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The Nation’s Top State Courts Face a Crisis of Legitimacy

Judges on state supreme courts don’t reflect the diversity of their communities.

July 23, 2019

This piece was originally published by the New York Times.

The nation’s courts have a checkered history when it comes to doling out justice for people of color and women. We often focus on the egregious outcomes — racial disparities in sentencing, over-incarceration of black men, courts that ignore survivors of sexual violence. Less often do we consider which factors might contribute to these injustices, including the race and gender of the justices who sit on the top state courts.

We reviewed 60 years of data and found that those who preside over these often overlooked but powerful institutions continue to be overwhelmingly white and male. This lack of diversity creates a legitimacy crisis for the justice system.

While national attention is often focused on the United States Supreme Court, the top courts in each state typically are the final word on interpreting state law and making decisions that more than 23,000 lower state court judges are to follow. Ninety-five percent of all cases filed in the United States are heard in state courts.

Those courts decide some of the most pressing issues affecting our lives. In recent years, state supreme courts have reversed billion-dollar verdicts in consumer protection cases, authorized executions using experimental drugs, barred localities from regulating fracking and struck down restrictive abortion laws.

But seldom do these courts look anything like an increasingly diverse America.

We found that nearly half of all states do not have a single justice sitting on their high courts who is black, Asian, Latino, or Native American — even though people of color make up about 40 percent of the population. In eight of the 24 states with all-white high courts, people of color make up at least a quarter of the population. Thirteen states have not seated a single justice of color since at least 1960. Eighteen states have never seated a black justice.

The dearth of gender diversity is also appalling. Women hold only 36 percent of the seats on top state courts. Seventeen states have only one female justice. (State supreme court benches have five to nine justices.)

We also found that not only are state high court judges overwhelmingly homogeneous, but also, by some measures, state courts are becoming less reflective of the nation’s diversity than they were a generation ago. While there are more lawyers of color than ever before, we found that the gap between the proportion of people of color on the bench and their representation in the American population was higher in 2017 than it was in 1996.

The public legitimacy of our entire judicial system is under threat if the judges making crucial decisions about the law don’t reflect the diversity of the communities affected. As former Justice Yvette McGee Brown of the Ohio Supreme Court observed, the public’s perception of justice suffers “when the only people of color in a courthouse are in handcuffs.”

What’s more, research has shown that diversity on the bench enriches judicial deliberations. Studies of federal courts found that when a female justice or a justice of color sits on a panel, their male or white colleagues are more likely to side with plaintiffs in civil rights cases.

The lack of racial and gender diversity on the bench is driven by a host of factors — including the underrepresentation of women and people of color in leadership positions within the law, implicit and explicit biases, and low judicial salaries that can make it difficult to attract top candidates. These are areas that deserve further study.

But our research also found another contributor: judicial elections. Twenty-two states use contested elections to choose their justices. Some advocates of reform have suggested elections may give underrepresented candidates a fairer shot at winning a seat on the bench. But our study shows that elections, as compared to judicial appointments, have rarely been a path to a top state court for people of color.

Instead, candidates of color face hurdles. We found they raise less money, win less frequently, are challenged more often as incumbents and receive less support from special interest groups.

What’s more, candidates of color in some states have reported a “surname challenge,” where having a surname associated with a particular racial or ethnic group can make it harder to win. For instance, Elsa Alcala, a Latina judge who was appointed to the Texas Court of Criminal Appeals by Gov. Rick Perry, a Republican, has said she chose not to run for re-election in 2018 in part because she thought her Hispanic surname would be seen as a vulnerability and possibly draw a primary challenger.

But we can mitigate these inequities. States don’t have to elect their high court justices. If they choose to do so, there are proven approaches, like public financing, that can help open the door for diverse candidates. Lawmakers, the legal profession and law schools can and should dedicate meaningful resources toward building pipelines for diverse judicial candidates.

For the courts to command legitimacy, they must first reflect the richness of America’s diversity.