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State Supreme Court Diversity — April 2021 Update

Across the country, state supreme courts fail to reflect the diversity of the communities they serve and the diversity of the legal profession.

Last Updated: May 25, 2022
Published: April 20, 2021

In July 2019, the Bren­nan Center for Justice published State Supreme Court Diversity, which detailed vast racial, ethnic, and gender dispar­it­ies on state high courts across the coun­try, draw­ing on more than 60 years of data. This analysis updates the report with new data on the compos­i­tion of state supreme courts as of April 6, 2021. foot­note1_0d6p6b4 1 The authors would like to thank Risa Gelles-Watnick and Patrick Berry for their invalu­able assist­ance collect­ing and analyz­ing the data for this update, as well as edit­ing the final product. It includes more detailed demo­graphic inform­a­tion and, for the first time, inform­a­tion about justices’ profes­sional back­grounds. The report was previ­ously updated in Febru­ary 2020.

Key find­ings since our last update include:

  • In 22 states, no justices publicly identify as a person of color, includ­ing in 11 states where people of color make up at least 20 percent of the popu­la­tion.
    • There are no Black justices in 28 states.
    • There are no Latino justices in 40 states.
    • There are no Asian Amer­ican justices in 44 states.
    • There are no Native Amer­ican justices in 47 states.
  • Across all state high courts, just 17 percent of justices are Black, Latino, Asian Amer­ican, or Native Amer­ican. By contrast, people of color make up almost 40 percent of the U.S. popu­la­tion.
  • Women hold 39 percent of state supreme court seats.
  • In 12 states, there is only one woman on the supreme court bench.
  • Over a third (37 percent) of sitting justices are former prosec­utors, while only 7 percent are former public defend­ers.

Recent Changes

Since we last collec­ted data, in Febru­ary 2020, there have been person­nel changes involving 46 seats on state supreme court benches across the coun­try: 41 new justices have taken office, and 5 seats are currently vacant.

There has been relat­ively little change in over­all court demo­graph­ics. Of the seats that have had person­nel changes, 13 were filled via elec­tion and 28 via appoint­ment. Thirty of the new justices are white (17 men and 13 women), includ­ing in 17 states where people of color make up at least 20 percent of the popu­la­tion (Alaska, Arkan­sas, Color­ado, Connecti­cut, Flor­ida, Geor­gia, Hawaii, Illinois, Kansas, Louisi­ana, Michigan, Minnesota, Nevada, North Caro­lina, Ohio, Rhode Island, and Texas). Of the remain­ing seats, four were filled by Black women, one by an Asian Amer­ican woman, two by Latina women, three by Black men, and one by a Latino man. Nation­ally, the percent­age of justices of color increased by two points since 2019, from 15 percent to 17 percent. The percent­age of female justices increased by three points, from 36 percent to 39 percent.

Notable Changes

Rhode Island. On Janu­ary 11, 2021, Melissa Long was sworn in as a justice on the Rhode Island Supreme Court, becom­ing the state’s first Black justice. Prior to Long’s appoint­ment, Rhode Island never had a justice of color on its high court. Long was nomin­ated by then-Gov. Gina Raimondo (the current U.S. secret­ary of commerce) and confirmed by the Rhode Island General Assembly. Previ­ously, Long was an asso­ci­ate justice on the Rhode Island Super­ior Court from 2017 to 2020. With Long’s appoint­ment, there are now 11 states in the coun­try that have never had a person of color on their high court and 16 that have never had a Black justice.

Cali­for­nia. Martin Jenkins was confirmed to the Cali­for­nia Supreme Court by the state’s Commis­sion on Judi­cial Appoint­ments in Novem­ber 2020 after being nomin­ated by Gov. Gavin Newsom. Jenkins is the state’s first openly gay justice as well as its third Black justice. Prior to his appoint­ment, a Black man had not served on the Cali­for­nia Supreme Court in nearly three decades. Notably, Jenkins previ­ously served as a judge on the U.S. District Court for the North­ern District of Cali­for­nia from 1997 to 2008, making him the only currently sitting state supreme court justice to have served on a federal court.

New Jersey. On Septem­ber 1, 2020, Fabi­ana Pierre-Louis was sworn in as a justice on the New Jersey Supreme Court, becom­ing the first Black woman to sit on its bench. She was nomin­ated by Gov. Phil Murphy and confirmed by the New Jersey Senate. Pierre-Louis is only the third Black justice in New Jersey, where 15 percent of the popu­la­tion is Black. Appoin­ted at the age of 39, she is also the young­est justice on the court.

Geor­gia. Carla Wong McMil­lian was appoin­ted by Gov. Bryan Kemp in March 2020 to the Geor­gia Supreme Court. She is the first Asian Amer­ican justice to serve in any south­ern state. Previ­ously, McMil­lian served on the Geor­gia Court of Appeals, where she was the first Asian Amer­ican to be elec­ted to statewide office in Geor­gia. Geor­gia is one of only six states that has an Asian Amer­ican justice.

North Caro­lina. Cheri Beas­ley, the first Black woman to serve as North Caro­lin­a’s chief justice, lost her bid for reelec­tion in 2020 to one of her colleagues on the state’s supreme court, Paul Newby, who is white. The state now has two Black justices, down from three. The five other justices on the court identify as white.

Racial, Ethnic, and Gender Diversity foot­note2_q04qyyy 2 This work builds on a data set gener­ously shared with the Bren­nan Center by Professor Greg Goelzhauser at Utah State Univer­sity, which includes demo­graphic inform­a­tion for state supreme court justices who reached the bench between 1960 and 2014. The Bren­nan Center updated this data through 2021 and added more detailed demo­graphic inform­a­tion. To code justices’ race, ethni­city, and gender, the Bren­nan Center reviewed second­ary sources with hall­marks of cred­ib­il­ity, includ­ing biograph­ical state­ments, obit­u­ar­ies, news­pa­per articles, and listed member­ship in affin­ity organ­iz­a­tions. Where no publicly avail­able inform­a­tion about race or ethni­city was avail­able, we reached out directly to cham­bers. These meth­ods left us unable to verify race and ethni­city for 13 out of 339 sitting justices. After analyz­ing photos of these 13 justices, each was coded as white.

A diverse bench is vital to achiev­ing a fair system of justice and promot­ing public trust in the courts. Across the coun­try, state supreme courts fail to reflect an increas­ingly diverse popu­la­tion.

Nearly half of all states — 22 in total — do not have a single justice who publicly iden­ti­fies as a person of color, includ­ing 11 states where people of color make up at least 20 percent of the popu­la­tion. Many state supreme courts also have a dearth of female justices: 12 states have only one woman sitting on their benches, which range in size from five to nine seats. As discussed in State Supreme Court Diversity, today’s lack of judi­cial diversity is driven by many factors, includ­ing a long history of racial and gender discrim­in­a­tion in the United States and inequit­ies in access to law schools and the legal bar.

Beyond these aggreg­ate figures, many racial and ethnic communit­ies are not reflec­ted on state supreme court benches. There are no Latino justices in 12 states where Latino resid­ents make up at least 10 percent of the popu­la­tion (Connecti­cut, Hawaii, Idaho, Illinois, Kansas, Mary­land, Nebraska, Nevada, Oklahoma, Oregon, Rhode Island, and Utah). Among states where Black resid­ents make up at least 10 percent of the popu­la­tion, eight do not have a Black justice (Alabama, Arkan­sas, Flor­ida, Indi­ana, Michigan, Nevada, Pennsylvania, and Tennessee).

Three of the four states with the largest Native Amer­ican popu­la­tions do not have any Native Amer­ican justices (Arizona, Cali­for­nia, and Texas). Simil­arly, three of the five states with the largest Asian Amer­ican popu­la­tions do not have any Asian Amer­ican justices (New Jersey, New York, and Texas).

Diversity of Profes­sional Back­grounds

Profes­sional exper­i­ence is another import­ant dimen­sion of a diverse bench. In terms of both legal exper­i­ence and clients served, diversity can inform judges’ perspect­ives when decid­ing cases and contrib­ute to the devel­op­ment of the law. Indeed, for this reason, Pres­id­ent Joe Biden has prior­it­ized increas­ing profes­sional diversity on the federal bench, where lawyers with corpor­ate and prosec­utorial back­grounds have histor­ic­ally been overrep­res­en­ted and where former public defend­ers, civil rights lawyers, and legal services lawyers are rarely found. This commit­ment was reflec­ted in Biden’s initial judi­cial nomin­a­tions.

Until now, there has been little inform­a­tion about the profes­sional back­grounds of the justices who sit on state high courts. The Bren­nan Center reviewed the profes­sional back­ground of every sitting state supreme court justice, categor­iz­ing their prior legal exper­i­ences. foot­note3_60smroe 3 Our meth­od­o­logy was as follows: We reviewed the offi­cial biograph­ies of all state supreme court justices and coded their profes­sional affil­i­ations in the follow­ing categor­ies: former judge, academia (includ­ing think tanks), private prac­tice/law firm, in-house coun­sel, law clerk, court staff/attor­ney, lobby­ist, public defender, civil legal services, prosec­utor, law enforce­ment (besides prosec­utor), govern­ment attor­ney (other than public defender/prosec­utor/lawyer for one of the polit­ical branches), lawyer in governor’s office, lawyer for legis­lature, elec­ted/statewide offi­cial, nonprofit, and other. We coded judges as having belonged to any of these profes­sions if they worked in that field after complet­ing their legal educa­tion (legal intern­ships were not included). We used the follow­ing tier rank­ing of sources: offi­cial biograph­ies; court press releases; campaign pages (if elec­ted); Ballot­pe­dia, LinkedIn, and Wiki­pe­dia; and news reports. If no inform­a­tion was avail­able, we contac­ted justices’ cham­bers.

The most common profes­sional exper­i­ences for state supreme court justices were in private prac­tice (81 percent), another judge­ship (68 percent), and prosec­utors’ offices (37 percent). In all 50 states, at least one justice has a back­ground in private prac­tice. Just 7 percent of justices have exper­i­ence as public defend­ers and 2 percent as civil legal services attor­neys.

Partic­u­larly strik­ing is the differ­ence in repres­ent­a­tion between justices with back­grounds as former prosec­utors and those who served as public defend­ers: Only 20 states have a former public defender on the bench, foot­note4_ciyh1m2 4 We coun­ted as public defend­ers any indi­vidual who had been employed to provide indi­gent crim­inal defense, includ­ing contract defend­ers.  whereas 43 states have at least one former prosec­utor. foot­note5_0j0w27f 5 If we were unable to determ­ine whether a justice who served in an attor­ney gener­al’s office or muni­cipal office worked in a civil or crim­inal role, that justice was not coun­ted as a prosec­utor. The number of former prosec­utors there­fore repres­ents a lower bound estim­ate.

Indeed, public defend­ers’ records are often grist for attack. For example, in Janu­ary 2021, Repub­lic­ans in the Kansas State Senate rejec­ted a nominee for a vacancy on the state’s second-highest court, with some senat­ors express­ing concern with his back­ground as a public defender. Public defend­ers have histor­ic­ally faced similar chal­lenges when running in judi­cial elec­tions, although there are recent examples of public defend­ers running success­ful campaigns for lower court seats on a crim­inal justice reform plat­form. In New Orleans’s 2020 elec­tion, for example, seven current and former public defend­ers ran for judi­cial seats on a plat­form of combat­ing mass incar­cer­a­tion, with two ulti­mately winning their races. 

Even less repres­en­ted on the bench are civil legal services providers, who repres­ent low-income indi­vidu­als in matters such as evic­tions or consumer debt proceed­ings. Only 2 percent of justices have exper­i­ence work­ing in civil legal aid. Indeed, out of all of the justices currently sitting on high court benches, there are more named John (13 justices) than there are with any civil legal aid back­ground (7 justices).

Justices’ profes­sional back­grounds also vary substan­tially depend­ing on their race and ethni­city, suggest­ing that many justices of color take differ­ent paths to the bench than their white coun­ter­parts. For example, 84 percent of all white supreme court justices worked in private prac­tice before reach­ing the bench, compared to 54 percent of Black justices, 74 percent of Latino justices, 75 percent of Asian justices, and 25 percent of all Native Amer­ican justices. A similar trend is reflec­ted in the legal profes­sion as a whole. Accord­ing to a 2020 report by the Amer­ican Bar Asso­ci­ation, mid-career white lawyers are more likely to be found in law firms (40 percent) than mid-career lawyers who are Latino (34 percent), Asian Amer­ican (30 percent), Black (24 percent), or Native Amer­ican (20 percent).

By contrast, white justices are less likely than justices of color to have served as prosec­utors: 34 percent of white supreme court justices were prosec­utors before reach­ing the bench, compared to 46 percent of Black justices, 53 percent of Latino justices, and 38 percent of Asian justices. (Among the four Native Amer­ican justices, two served as a prosec­utor.) These figures are out of step with the demo­graph­ics of prosec­utors across the coun­try: as of 2019, 95 percent of prosec­utors in the United States were white, and 75 percent were white men.

A diverse bench is crit­ical to promot­ing a justice system that is fair and seen as such by the public. On this meas­ure, state supreme courts across the coun­try continue to fall short.

* CORREC­TION: The original version of this resource stated that only 19 states have a former public defender on their state supreme court and indic­ated that there were no former public defend­ers on the Nevada Supreme Court. The resource has been updated to reflect that 20 states, includ­ing Nevada, have former public defend­ers on their state supreme courts.

End Notes