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Analysis

State Supreme Courts See Progress on Diversity but Still Fall Short

New research from the Brennan Center shows that state supreme court justices still don’t reflect the diverse populations they serve.

Alabama Supreme Court
Copyright 2018 Alabama Judicial System

Tamika Mont­gomery-Reeves made history last fall when she was confirmed as the first Black justice on the Delaware Supreme Court. It was a small step toward improv­ing diversity on state supreme courts nation­wide, but it also high­lights a glar­ing prob­lem.

Her appoint­ment is unusual, yet it should­n’t be — espe­cially in a state where 23 percent of the popu­la­tion is Black. A lack of diversity among judges under­mines public faith in the justice system, and it limits the perspect­ives avail­able to inform judi­cial decisions.

In July 2019, the Bren­nan Center released State Supreme Court Diversity, report detail­ing the vast racial, ethnic, and gender dispar­it­ies on state high courts across the coun­try. Draw­ing on nearly 60 years of data, the study examined the factors that have contrib­uted to this seri­ous issue, includ­ing substan­tial racial dispar­it­ies in the outcomes of judi­cial elec­tions.

Now we’re releas­ing new data updat­ing the report with the current compos­i­tion of state supreme courts as of early Febru­ary.

Racial, ethnic, and gender dispar­it­ies persist

In the past nine months there’s been little move­ment in the over­all demo­graphic compos­i­tion of state high courts, which rarely look anything like the increas­ingly diverse Amer­ican popu­la­tion.

Since May 2019, when we last collec­ted data, there have been 19 open­ings on state supreme courts across the coun­try. Four­teen of these vacan­cies have since been filled, two via elec­tions and twelve via appoint­ments.

Strik­ingly, white men continue to be overrep­res­en­ted: half of these 14 seats were filled by white men, includ­ing in four states where people of color make up over 30 percent of the popu­la­tion. Of the other seven seats, four were filled by white women, one by a Black woman, and two by a male and female Native Amer­ican justice, respect­ively.

Currently, 23 states have an all-white state supreme court bench, includ­ing 12 states where people of color are at least 20 percent of the popu­la­tion. And while people of color make up nearly 40 percent of the U.S. popu­la­tion, only 15.5 percent of state supreme court seats are held by people of color, up 0.5 percent­age points from last year.

Only six states — Cali­for­nia, Connecti­cut, Minnesota, North Caro­lina, Oregon, and Wash­ing­ton — 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, exclud­ing states with vacant seats. (For a full state-by-state break­down, see our update page.) Even more states fall short when data is disag­greg­ated. For example, New York State has the second largest Asian popu­la­tion in the United States but has never had an Asian justice on its highest court.

With respect to gender diversity, 6 out of 14 new justices were women, and over­all five states have more women on their high courts than they did last year, while two states have fewer women.

Women now hold 37 percent of state supreme court seats, up 1 percent­age point from last year. Fifteen states currently have one or fewer female justices on their high courts.

Flor­ida is a standout — and not in a good way. With two vacan­cies on its seven-member high court, the state currently has no female justices. The state’s last female high court justice, Barbara Lagoa, left the state bench in Septem­ber after being appoin­ted to a federal appeals court. Lagoa, who is Cuban Amer­ican, was also one of three people of color on Flor­id­a’s high court bench. Of the five men who currently sit on the Flor­ida Supreme Court, two are Latino and three are white.

Pock­ets of progress

Two states did see historic appoint­ments since the release of our report. The first was the appoint­ment of Justice Mont­gomery-Reeves in Delaware. Not only is she the state’s first Black justice, she is also only the second woman to sit on the state’s high court bench. With her appoint­ment, there are now 17 states that have never had a Black justice (many of which have small Black popu­la­tions).

In Wash­ing­ton, Raquel Montoya-Lewis became the first Native Amer­ican person to ascend to the state’s highest court. Notably, while Wash­ing­ton uses judi­cial elec­tions, all three of the justices of color currently sitting on its high court were initially appoin­ted by the governor to fill an interim vacancy. By contrast, four of the six white justices first reached the bench through statewide elec­tion. This is consist­ent with the find­ing in our report that judi­cial elec­tions have rarely been a path to the supreme court bench for people of color — and is one reason why we recom­mend appoint­ments instead of elec­tions for state supreme court seats.

Another note­worthy devel­op­ment came in Oklahoma, where Dustin Rowe, a Native Amer­ican, was named to the  Oklahoma Supreme Court. The two appoint­ments in Wash­ing­ton and Oklahoma tripled the number of Native Amer­ican state supreme court justice in the entire coun­try, since before there was only one — Justice Anne McKeig of the Minnesota Supreme Court.

These advance­ments come as Native Amer­ic­ans continue to be under­rep­res­en­ted in the legal profes­sion as a whole. A 2015 study by the National Native Amer­ican Bar Asso­ci­ation detailed the exper­i­ences of Native Amer­ican attor­neys, includ­ing ways that discrim­in­a­tion and a dearth of support systems have posed hurdles to profes­sional advance­ment. Our report detailed how related obstacles have contrib­uted to the lack of repres­ent­a­tion on state supreme courts for other people of color as well as women.

More must be done to achieve diversity on the bench, includ­ing increas­ing profes­sional oppor­tun­it­ies for under­rep­res­en­ted groups and address­ing racial dispar­it­ies in judi­cial elec­tions. To have a justice system that real­izes its name, we need courts that reflect an increas­ingly diverse Amer­ica.