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Analysis

What Research Shows About the Importance of Supreme Court Diversity

President Biden promised to nominate a Black woman to the Supreme Court. Here are some reasons why it makes a difference.

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Justice Stephen Breyer announced his retire­ment on Janu­ary 27. Soon after, Pres­id­ent Biden reit­er­ated his commit­ment to nomin­ate the first Black woman to ever serve on the Supreme Court. This would be a mile­stone for the judi­ciary — and for the nation. Ample evid­ence demon­strates why build­ing a diverse bench is a crucial value in choos­ing judges.

First, a diverse judi­ciary helps instill trust in the justice system among under­rep­res­en­ted communit­ies. As federal district court Judge Edward Chen observed, “It is the busi­ness of the courts, after all, to dispense justice fairly and admin­is­ter the laws equally. . . . 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?” One study found, for example, that greater repres­ent­a­tion of Black judges on the bench led to heightened percep­tions among Black Amer­ic­ans that the courts were legit­im­ate.

A bench that reflects a broad range of life exper­i­ences and personal and profes­sional back­grounds also promotes a richer juris­pru­dence. This is borne out in judges’ own reflec­tions. Judge Harry T. Edwards of the DC Circuit Court of Appeals has observed that diversity on the bench “provides for constant input from judges who have seen differ­ent kinds of prob­lems in their pre-judi­cial careers, and have some­times seen the same prob­lems from differ­ent angles.” Federal district court Judge Carlton W. Reeves has noted, “Where people come from, what they have lived through, what they do with the time they have, and who they spent that time with — it all matters.”

Justice Sandra Day O’Con­nor has recoun­ted how she learned from Justice Thur­good Marshall, the first Black justice and a legendary civil rights lawyer. “Occa­sion­ally, at Confer­ence meet­ings, I still catch myself look­ing expect­antly for his raised brow and his twink­ling eye, hoping to hear, just once more, another story that would, by and by, perhaps change the way I see the world.”

Research simil­arly has shown that “judges from differ­ent back­grounds often do rule differ­ently from one another” on certain issues, as polit­ical scient­ist Maya Sen described last year in testi­mony to the Senate Judi­ciary Commit­tee. One recent study, for example, found that white federal district court judges placed more condi­tions on pre-trial release than Black judges.

Another recent study found that former corpor­ate lawyers and prosec­utors, who make up 70 percent of active federal judges, were more likely to rule against alleged victims in employ­ment discrim­in­a­tion suits. Outside of formal court rulings, research has docu­mented that female judges are more likely to identify incid­ents of gender bias in the courtroom and inter­vene. Together, this research suggests that, not surpris­ingly, life exper­i­ence shapes how judges see the law.

Diversity of life exper­i­ence and perspect­ives also enriches delib­er­a­tions among judges. For example, stud­ies of three-judge appel­late panels found that when a female judge or a person of color sits on a panel, their male or white colleagues were more likely to side with plaintiffs in civil rights cases.

To be sure, none of this research suggests that a judge’s back­ground is determ­in­at­ive in how they decide cases. And diversity is not a guar­an­tee that courts will reach fair outcomes. But the answers to diffi­cult legal ques­tions, espe­cially those that reach the Supreme Court, demand good judg­ment — and that is neces­sar­ily informed by life exper­i­ence. Chief Justice John Roberts famously said that his job as a jurist is just “to call balls and strikes,” dispas­sion­ately apply­ing the law to the facts before him. In contrast, during her confirm­a­tion process, Justice Sonia Soto­may­or’s detract­ors attacked her for having once said that “personal exper­i­ences affect the facts that judges choose to see.” The research sides with Soto­mayor.

Finally, repres­ent­a­tion in our seats of power also estab­lishes role models and combats stereo­types. Stud­ies of polit­ics and elec­tions have found that repres­ent­a­tion fosters increased polit­ical engage­ment among young people.

A woman didn’t reach the Supreme Court bench until 1981. The first woman of color only took her seat in 2009. There have only been two Black justices in the Court’s history. The sooner this record improves, the better.

Ensur­ing demo­graphic and exper­i­en­tial diversity on the bench is not just an appro­pri­ate compon­ent of judi­cial selec­tion, it is neces­sary. As the research makes clear, a bench that fails to reflect the public it serves is ill-equipped to serve that public.