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.