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Analysis

State Courts’ Stark Lack Of Diversity Demands Action

Building a more diverse bench is necessary if we are to have a legal system that serves us all equally.

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This piece origin­ally appeared in Law360.

In his first five months in office, Pres­id­ent Joe Biden has prior­it­ized nomin­at­ing judges who would bring demo­graphic and profes­sional diversity to the federal bench.

Six of his seven confirmed judges are people of color, and five are women. The admin­is­tra­tion is also taking on the judi­ciary’s lack of profes­sional diversity by nomin­at­ing more public defend­ers and civil rights lawyers to a bench domin­ated by former prosec­utors and corpor­ate attor­neys.

Lead­ers in the states should take note. State courts lag far behind their federal coun­ter­parts when it comes to having a bench that is reflect­ive of an increas­ingly diverse Amer­ican popu­la­tion.

Research by our organ­iz­a­tion, the Bren­nan Center for Justice, demon­strates the dearth of racial, ethnic, gender and profes­sional diversity on state high courts, bodies that decide 95% of all cases in this coun­try.

In a study released in April, we found that 83% of state high court judges are white, and that men have 61% of the seats. There are no Black state supreme court justices in 28 states, no Latino justices in 40 states, and no Asian Amer­ican justices in 44 states. As for their profes­sional back­grounds, only 7% of all state high court justices are former public defend­ers, while former prosec­utors hold over one-third of these seats.

This stark lack of diversity does­n’t only reflect systemic inequit­ies — it also contrib­utes to them. Justices’ profes­sional and life exper­i­ences shape the law in this coun­try, and it’s vital that state courts reflect the diversity of the communit­ies affected by their decisions.

State supreme courts typic­ally have the final word in ques­tions of state law, their decisions affect­ing the lives of millions in their states.

In the past few years, state supreme courts have issued a range of import­ant decisions, includ­ing ending cash bail in Cali­for­nia for those who cannot afford to pay, void­ing Missis­sip­pi’s ballot initi­at­ive process (strik­ing down a medical marijuana program along the way), ending a mask mandate in Wiscon­sin during the coronavirus pandemic, and find­ing a right to abor­tion in the Kansas state consti­tu­tion.

We need state supreme court benches with justices who can draw on diverse life exper­i­ences to inform their decision making in these high-stakes cases. This includes those with profes­sional exper­i­ence repres­ent­ing crim­inal defend­ants and members of margin­al­ized communit­ies. This kind of diversity is crit­ic­ally import­ant for public trust in the courts, and for address­ing systemic unfair­ness in our legal system.

Having diverse perspect­ives on the bench certainly does­n’t guar­an­tee partic­u­lar outcomes, since judi­cial philo­sophy is shaped by numer­ous factors. But it’s also hard to see how courts will be equipped to address inequit­ies in our justice system without greater repres­ent­a­tion of women, people of color and lawyers with exper­i­ence repres­ent­ing indi­vidu­als who are often on the receiv­ing end of injustice.

Indeed, evid­ence supports the common­sense notion that a judge’s back­ground informs how they approach cases, and that judges learn from each other — espe­cially when their colleagues bring differ­ent life exper­i­ences to the table.

For example, stud­ies of federal courts have found that Black judges are more likely to side with plaintiffs in civil rights cases, and that their pres­ence on a panel of judges hear­ing a case makes it more likely that their white colleagues will do the same. A March report by Emory Univer­sity law professor Joanna Shep­herd also found that judges with back­grounds as prosec­utors or corpor­ate lawyers were more likely to rule in favor of employ­ers in work­place disputes.

To be sure, the back­grounds of state supreme court justices are chan­ging, and the past year has seen some path­break­ing appoint­ments.

In Janu­ary, Melissa Long became the first justice of color to sit on the Rhode Island Supreme Court. At the end of last year, Fabi­ana Pierre-Louis became the first Black woman to join the New Jersey Supreme Court. And in April 2020, Carla Wong McMil­lian became the first Asian Amer­ican justice to serve on a high court bench in the South when she joined the Geor­gia Supreme Court.

But progress is extremely slow. Since 2019, the percent­age of seats held by women has risen by only 3 points. Between Febru­ary 2020 and April 2021, 30 of the 41 new justices to join state supreme courts have been white, includ­ing in 17 states where people of color make up at least 20% of the popu­la­tion.

Much can be done to pick up the pace.

The vast major­ity of state supreme court justices who came to office in the past year took their seats via appoint­ments by the governor, often with the input of judi­cial nomin­at­ing commis­sions. These appoint­ments often fly under the radar with little public atten­tion or scru­tiny.

The public, includ­ing state bar asso­ci­ations, can change that by call­ing on governors to prior­it­ize racial, gender and profes­sional diversity when filling these seats. And governors and nomin­at­ing commis­sions can and should take active steps to prior­it­ize diversity, includ­ing creat­ing a trans­par­ent process for filling seats, enga­ging in outreach to under­rep­res­en­ted communit­ies, and adopt­ing a vetting process designed to reduce the risk of impli­cit bias.

In the states that select high court judges via elec­tion, legis­latures can make candid­acy more access­ible by estab­lish­ing public finan­cing programs, provid­ing eligible judi­cial candid­ates with public fund­ing for their campaigns.

Our organ­iz­a­tion’s research has docu­mented racial dispar­it­ies in who runs, who wins, who gets chal­lenged and who raises the most money in state supreme court elec­tions across the coun­try.

Judi­cial public finan­cing programs, partic­u­larly ones that match — and multiply — small-donor contri­bu­tions, can open the door to a wider set of qual­i­fied candid­ates for judi­cial seats by making it possible to run a compet­it­ive elec­tion without need­ing million-dollar networks or extens­ive connec­tions, priv­ileges that dispro­por­tion­ately bene­fit white candid­ates.

Indeed, in the few states that have offered public finan­cing for judi­cial elec­tions, it has been dispro­por­tion­ately util­ized by candid­ates of color.

In addi­tion, those in lead­er­ship posi­tions in law schools and the bar can invest in pipeline build­ing. It is the respons­ib­il­ity of those in the legal profes­sion to shed light on the ways that discrim­in­a­tion and old boy networks have been hurdles to success in the law for those from under­rep­res­en­ted back­grounds.

Only 14% of lawyers are people of color, and the number of students of color enrolled in law school slightly decreased in 2019. There is a dearth of both women and people of color in lead­er­ship posi­tions at law firms and other tradi­tional path­ways to the bench. Research suggests that impli­cit bias, harass­ment and discrim­in­a­tion are all barri­ers to advance­ment.

Judges, law firms and other stake­hold­ers in the legal profes­sion can take concrete steps to address these systemic issues.

For instance, a hand­ful of judges has adop­ted court rules that encour­age law firms to give speak­ing oppor­tun­it­ies to a more diverse set of lawyers in court. Law firms can commit to equity targets, includ­ing provid­ing equal oppor­tun­it­ies for junior lawyers to parti­cip­ate in key profes­sional devel­op­ment exper­i­ences. Clients can even demand diverse legal teams — and take their busi­ness else­where if firms can’t meet their targets.

Members of the bar can also parti­cip­ate in programs to provide ment­or­ship and support to future or early-career lawyers, espe­cially for women, people of color and other indi­vidu­als with under­rep­res­en­ted back­grounds in the legal profes­sion.

For example, the pipeline organ­iz­a­tion Just the Begin­ning works with students begin­ning in middle school and through their post­gradu­ate career to help place indi­vidu­als from under­rep­res­en­ted back­grounds in under­gradu­ate intern­ships, law school programs and judi­cial clerk­ships. Simil­arly, the Appel­late Project focuses on train­ing and ment­or­ship for students of color inter­ested in pursu­ing appel­late law.

Build­ing a path for more people with diverse back­grounds to become judges — espe­cially on state supreme courts — is neces­sary if we are to have a legal system that serves us all equally.