New Report Shows Extreme Lack of Diversity Among State Supreme Court Justices

July 23, 2019

Study finds that state supreme courts don’t have gender parity or reflect the racial or ethnic composition of the communities they serve

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State supreme courts, which sit at the top of state judiciaries, don’t have gender parity and don’t reflect the racial or ethnic composition of the communities they serve, according to a new report from the Brennan Center for Justice at NYU Law.

“Across the country, states’ most powerful courts are overwhelmingly white and male, unlike the communities they serve,” said Alicia Bannon, Managing Director of the Brennan Center’s Democracy Program and a coauthor of the report. “Our judicial system loses credibility with the public when the judges making the rulings don’t reflect the diversity of the people affected by those rulings. Our courts can’t function without the public’s trust.”

The authors of State Supreme Court Diversity analyzed the demographics of more than 1,600 people who served as justices in the states’ highest courts between 1960 and 2019. Among their findings for that period:

  • 13 states have not seated a person of color as a state supreme court justice
  • 24 states currently lack a justice of color on their state supreme court bench
  • White men now make up less than a third of the U.S. population but more than half (56 percent) of state supreme court justices
  • Women make up roughly half the U.S. population but hold 36 percent of state supreme court seats
  • People of color make up nearly 40 percent of the U.S. population but hold 15 percent of state supreme court seats
  • Over the past twenty years, state supreme courts have become less reflective of the nation’s increasingly diverse population. In 1996, there were 63 percent fewer justices of color on state high court benches than would be predicted based on their representation in the general population. In 2017, that gap was 66 percent.

In addition, the authors supplemented their data with secondary sources that analyzed the pre-1960 period. They found that 18 states have never seated a black justice on a state supreme court.

The state court systems hear 95 percent of all cases filed in the United States, and their highest courts have the final say on critical issues. In recent years, state supreme courts have struck down restrictive abortion laws, reversed billion-dollar decisions in commercial disputes, and ordered hundreds of millions in additional funding for education. They are typically the final word on interpreting state law and make decisions that set the course for the lower state court judges.

State Supreme Court Diversity also breaks new ground in its analysis of how a state’s method of judicial selection may impact diversity on the bench. The report reveals that judicial elections, as compared to appointments, have rarely been the path to the supreme court bench for people of color. The report also documents racial disparities in many aspects of state supreme court elections: in comparison to white candidates, candidates of color raise less money, face challengers more often as incumbents, and receive less support from special interest groups. 

Vanita Gupta, president and CEO of the Leadership Conference on Civil & Human Rights, wrote the foreword to the report.

State Supreme Court Diversity: Across the Country, Courts Fail to Reflect the Racial, Ethnic, and Gender Diversity of the Communities They Serve is available here.

For more Brennan Center research on the judiciary and its selection processes and elections, visit Fair Courts.