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Fair Courts E-Lert: Brennan Center Updates State Supreme Court Diversity Data

This Fair Courts E-Lert highlights the Brennan Center’s updated state supreme court diversity data, the Biden administration’s move to limit immigration courthouse arrests, and more.

Last Updated: May 7, 2021
Published: July 15, 2021

Brennan Center Updates State Supreme Court Diversity Report with Demographic and Professional Data

On April 20, the Brennan Center released its second update to its report, State Supreme Court Diversity, with new demographic information about state supreme court justices, and for the first time, information about justices’ professional backgrounds.

There are now 22 states in which there are no justices who publicly identify as a person of color, including 11 states where people of color make up at least 20 percent of the population. There are also 28 states where there are no Black justices, 40 states where there are no Latino justices, 44 states where there are no Asian American justices, and 47 states without a Native American justice.

The researchers also found that over a third (37 percent) of sitting justices are former prosecutors, while only seven percent are former public defenders. In addition, 81 percent of justices across all demographic groups previously worked in private practice, whereas only two percent worked in civil legal aid.

Biden Administration Limits Immigration Courthouse Arrests

On April 27, the Department of Homeland Security announced new guidance instructing U.S. Immigrations and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) to limit civil immigration arrests in or near courthouses.

The move is a reversal of a Trump-era policy that expressly authorized ICE officers to enter federal, state, and local courthouses to arrest people who were there for reasons unrelated to their immigration status. Courthouse arrests also occurred during the Obama administration but increased in frequency by as much as 1700 percent between 2016 and 2018 in New York alone.

However, as noted by Brennan Center counsel Douglas Keith, “there’s still work to be done to ensure noncitizens and their communities feel safe accessing courts,” as the new policy leaves some discretion for federal agents to continue making such arrests by claiming there is a threat to public safety or national security, or by luring people out of courthouses as ICE officers have done at other locations where arrests are prohibited. The policy is also discretionary and impermanent, meaning it could be rolled back in the future by the Biden administration or another administration.

Montana Legislature Puts Initiative That Could Gerrymander State Supreme Court on 2022 Ballot

On April 26, Montana’s Republican-controlled legislature voted to put a proposal on the ballot in 2022 to require state supreme court justices to be elected by district, as opposed to statewide.

The measure, HB 325, would divide the state into seven districts, five of which would be likely to vote for a Republican candidate. It was introduced by Rep. Barry Usher, a Republican with ties to a conservative dark money group, and is similar to a ballot initiative that was struck down by Montana’s supreme court in 2012 as violating the state’s constitution.

Aside from HB 325, Montana’s legislature considered over a dozen bills this session that would either weaken or give Republicans an advantage on the state’s courts which lawmakers have criticized as being “too liberal.”

One bill allowing the state’s Republican governor to fill interim judicial vacancies without vetting by the state’s judicial nominating commission has been signed into law, prompting a bipartisan group of former state officials to file an immediate legal challenge, as well as a standoff between the legislature, the state’s Republican attorney general, and the state’s supreme court over the court’s alleged bias against bills that could be challenged in court.

Biden’s Federal Circuit Court Nominees Emphasize Public Defender Experience at Confirmation Hearing

President Joe Biden’s first two federal circuit court nominees to go before the Senate, D.C. District Court Judge Ketanji Brown Jackson and Candace Jackson-Akiwumi, both discussed how their previous experience as public defenders would influence their judicial decision making during their confirmation hearings on April 28.

Judge Jackson, who was chosen to replace Attorney General Merrick Garland on the D.C. Circuit and is widely viewed as a potential Supreme Court nominee, said that because of her prior work as a public defender, “[o]ne of the things that I do now, is I take extra care to communicate with the defendants who come before me in the court room. I speak to them directly and not just to their lawyers.” Jackson-Akiwumi, who was nominated to the Seventh Circuit Court of Appeals, also touched on how her work as a federal public defender would impact her approach in deciding cases.

If confirmed, Judge Jackson and Jackson-Akiwumi would join the one percent of circuit court judges who have worked as a public defender or in legal aid according to the Center for American Progress.