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Report

State Supreme Court Diversity

Key Fact: Twenty-four states currently have an all-white supreme court bench, including eight states in which people of color are at least a quarter of the state’s general population.

Published: July 23, 2019
Diversity in courts
Robert Daly/Getty/Shutterstock/BCJ

Amid grow­ing recog­ni­tion of dispar­it­ies in Amer­ica’s justice system, this report high­lights a crit­ical but under-scru­tin­ized prob­lem: the lack of racial, ethnic, and gender diversity on state supreme court benches across the United States. State supreme courts, which sit atop state judi­ciar­ies, do not typic­ally garner the same atten­tion as the U.S. Supreme Court, but they hold substan­tial power. As a whole, state courts hear 95 percent of all cases filed in the United States. State supreme courts gener­ally provide the final word in inter­pret­ing state law and set preced­ents that bind more than 23,000 lower state court judges.
 
In recent years, state supreme courts have reversed multi­mil­lion-dollar verdicts in commer­cial disputes, struck down restrict­ive abor­tion laws, and ordered hundreds of millions of dollars in addi­tional fund­ing for educa­tion — all as matters of state law.
 
Draw­ing on nearly 60 years of data, we looked at who has been empowered to don a robe and sit on these power­ful courts. A few numbers begin to tell the story:
  • Twenty-four states currently have an all-white supreme court bench, includ­ing eight states in which people of color are at least a quarter of the state’s general popu­la­tion.
  • Only 15 percent of state supreme court seats nation­wide are held by indi­vidu­als who are Black, Asian, Latino, or Native Amer­ican — though nearly 40 percent of the nation’s popu­la­tion are people of color.
  • Since at least 1960, the earli­est year for which we were able to obtain compre­hens­ive data, 13 states have never seated a person of color as a justice, and six more states have only had one justice of color. More than a third of all states — 18 in total — have never seated a Black justice.
  • Women hold only 36 percent of state supreme court seats. Currently, 17 states have only one female justice on their supreme court bench.
By some meas­ures, state supreme courts are less reflect­ive of the United States’ diversity than they were a gener­a­tion ago. The gap between the propor­tion of people of color on the supreme court bench and their repres­ent­a­tion in the U.S. popu­la­tion was higher in 2017 (the most current year for which we have avail­able popu­la­tion data) than it was over two decades ago, in 1996.
 
This defi­cit of diversity among judges threatens the legit­im­acy of the judi­ciary in the eyes of the communit­ies it serves. As former Ohio Supreme Court Justice Yvette McGee Brown observed, “The public’s percep­tion of justice suffers . . . when the only people of color in a court­house are in hand­cuffs.” This is partic­u­larly so in light of the vast racial dispar­it­ies in the Amer­ican crim­inal justice system, where 1 in 3 Black men are incar­cer­ated in their life­times, compared with 1 in 17 white A 2015 National Center for State Courts survey of public confid­ence in state courts found a “massive racial gap” in trust in the fair­ness of the courts, reveal­ing a “deep distrust of courts among African Amer­ic­ans.”
 
An absence of judi­cial diversity also limits the perspect­ives avail­able to inform judi­cial delib­er­a­tions, under­min­ing state courts’ abil­ity to develop a legal juris­pru­dence for an increas­ingly diverse Amer­ica. Research shows that judi­cial diversity enriches judi­cial decision-making, promotes public confid­ence in the judi­ciary, and estab­lishes role models across demo­graphic groups.
 
Many factors drive this, includ­ing a long history of racial and gender discrim­in­a­tion and inequit­ies in access to law schools and the legal bar (see Part II, “A History of Discrim­in­a­tion and Struc­tural Hurdles”). Women and people of color continue to be under­rep­res­en­ted in the legal profes­sion, and prior research has found that struc­tural barri­ers — includ­ing impli­cit and expli­cit biases, dispar­it­ies in access to ment­or­ing, and unequal work assign­ments — impact their advance­ment into lead­er­ship posi­tions in the law, which can in turn impact who reaches the bench.
 
Using new data, this report breaks ground in analyz­ing how another factor may impact diversity on the bench: a state’s method of judi­cial selec­tion. Our analysis reveals that judi­cial elec­tions have rarely been a path for people of color to reach the supreme court bench. This is true even in states that use contested elec­tions to choose their justices. In these states, interim appoint­ments, which occur when a seat opens in the middle of a justice’s term, have been the prin­cipal path to the bench for justices of color — but not for white justices. (Our find­ings are limited to state supreme courts, and dynam­ics may differ in lower courts.) And as detailed in Parts III and IV, we find racial dispar­it­ies in virtu­ally every element of state supreme court elec­tions, from who wins, to how frequently incum­bent justices are chal­lenged, to how much money candid­ates raise, to who is suppor­ted by special interest groups.
 
Diversity on state supreme courts is under-stud­ied and under-scru­tin­ized, in part due to a lack of data: few states collect this inform­a­tion or make it publicly avail­able. This report helps fill that gap, docu­ment­ing miss­ing diversity in the makeup of state high court benches across the coun­try. However, under­stand­ing the starkly inad­equate number of people of color and women on state supreme court benches is only a first step. We hope these find­ings will add urgency to efforts to build and strengthen pipelines to law school and the bench for under­rep­res­en­ted communit­ies, encour­age reforms to make both judi­cial elec­tions and appoint­ments more open to a diverse set of candid­ates, and inform discus­sions about how states should choose their justices in the first instance. Build­ing a more inclus­ive judi­ciary should be a prior­ity — not just for our elec­ted offi­cials and law schools, but for all of us.