The Shocking Lack of Diversity on State Supreme Courts

White male-dominated courts are a threat to judicial impartiality—and to democracy.

Daniel Fernandez September 20, 2019

The U.S. judicial system is in a crisis—and it’s way bigger than Trump. (Shutterstock)

The Amer­i­can judi­cia­ry is fac­ing a cri­sis of legit­i­ma­cy. Just one in three Amer­i­cans express con­fi­dence in the legal sys­tem, and there is a wide­spread belief that the rule of law is unfair­ly applied. The Supreme Court is not well,” five Demo­c­ra­t­ic sen­a­tors wrote in a much-dis­cussed ami­cus brief filed last month. And the peo­ple know it.”

What few­er peo­ple may know is that the nation’s high­est court is hard­ly unique in its dys­func­tion. Per­haps mat­ters per­tain­ing to low­er-lev­el courts have gone unno­ticed because Pres­i­dent Trump has appoint­ed two con­tro­ver­sial jus­tices to the Supreme Court and named near­ly 150 oth­er judges to life­time fed­er­al posi­tions. But this over­sight is at the public’s per­il: State courts hear 95 per­cent of all legal cas­es, and set prece­dents that bind more than 23,000 low­er court judges, who, as legal schol­ar Sher­ri­lyn Ifill explained in the Wash­ing­ton and Lee Law Review, have a more direct and irrev­o­ca­ble impact in the lives of many Amer­i­cans than local or even nation­al legislators.”

One of the most sig­nif­i­cant devel­op­ments in recent years is the out­sized role of big mon­ey in the 38 states that elect judges. The Nation­al Insti­tute on Mon­ey in Pol­i­tics esti­mates that, in 2018, more than $35 mil­lion was spent on state court races — an all-time record.

Par­ti­san­ship con­tin­ues to be an issue, too. Ari­zona Gov. Doug Ducey recent­ly added two addi­tion­al seats to the state’s top court and removed Democ­rats from its nom­i­nat­ing com­mis­sion, which, Slate legal writer Mark Joseph Stern claims, rig[s] the judi­cial process in favor of ultra­con­ser­v­a­tives.” Last year, a would-be judge in North Car­oli­na was tar­get­ed by the GOP for sid­ing with gangs before police.” And when the Iowa Supreme Court unan­i­mous­ly ruled to legal­ize same-sex mar­riage in 2009, con­ser­v­a­tives respond­ed with a vig­or­ous — and ulti­mate­ly suc­cess­ful — cam­paign to remove three of the jus­tices from the bench.

These trends com­pound anoth­er prob­lem plagu­ing top courts: an aston­ish­ing lack of diver­si­ty. Sev­en­teen states have just one woman on their supreme court, and near­ly half of all state top courts are all-white, accord­ing to a recent report pub­lished by the Bren­nan Cen­ter for Jus­tice, a law and pol­i­cy think tank at New York University’s Law School. This includes states with con­sid­er­able minor­i­ty pop­u­la­tions like Neva­da, Ten­nessee and Penn­syl­va­nia. Indeed, by many mea­sures, state bench­es are less rep­re­sen­ta­tive than they were a gen­er­a­tion ago, even as leg­isla­tive bod­ies like the U.S. Con­gress con­tin­ue to become more racial­ly and eth­ni­cal­ly diverse.

This is a prob­lem that goes much deep­er than the cur­rent pres­i­dent or the fed­er­al courts,” says Ali­cia Ban­non, the man­ag­ing direc­tor of the Bren­nan Center’s Democ­ra­cy Pro­gram and a co-author of the report. It goes to the integri­ty of our sys­tem of jus­tice… If your courts aren’t reflect­ing the com­mu­ni­ties they’re sup­posed to serve, you have a real cri­sis on your hands.”

A homoge­nous judi­cia­ry isn’t well posi­tioned to under­stand the chal­lenges that face Amer­i­cans of vary­ing sex­u­al ori­en­ta­tions, eth­nic­i­ties and socioe­co­nom­ic sta­tus­es. And when the legal sys­tem fails to include alter­na­tive per­spec­tives, it’s deprived of the oppor­tu­ni­ty to ren­der tru­ly fair and equal jus­tice. As Har­ry T. Edwards, a senior cir­cuit judge on the U.S. Court of Appeals, not­ed in 2002, diver­si­ty ensures 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.” 

Edwards’ point was not that per­son­al iden­ti­ty should deter­mine a justice’s deci­sions, and he active­ly reject­ed the notion that he was oblig­at­ed to enforce some myth­i­cal black per­spec­tive” as part of his rul­ings. Rather, he was argu­ing that diver­si­ty on the bench was about ensur­ing dif­fer­ences in aware­ness and that a more var­ie­gat­ed court was ulti­mate­ly bet­ter able to rule impartially.

Just as most of my Jew­ish col­leagues have more than a fleet­ing under­stand­ing of anti-Semi­tism, the Holo­caust, and issues sur­round­ing Israel and Pales­tine, most blacks have more than a fleet­ing under­stand­ing of the effects of racial dis­crim­i­na­tion,” he wrote. And If I some­times bring unique per­spec­tives to judi­cial prob­lems — per­spec­tives that are mine in whole or in part because I am black — that is a good thing. It is good because it is inevitable that judges’ dif­fer­ent pro­fes­sion­al and life expe­ri­ences have some bear­ing on how they con­front var­i­ous prob­lems that come before them.”

A large body of social sci­en­tif­ic research backs up these asser­tions. When John Kastel­lec, a polit­i­cal sci­en­tist at Prince­ton, ana­lyzed results from the U.S. Court of Appeals, he found that the pres­ence of a Black judge near­ly guar­an­teed that the court would rule in favor of affir­ma­tive action. This hap­pened even when the rest of the court was white. Race goes above and beyond the effect of ide­o­log­i­cal diver­si­ty,” he says. His results align with oth­er find­ings, includ­ing by Dr. Kate Brat­ton at Louisiana State Uni­ver­si­ty and Dr. Nan­cy Arring­ton at Cal Poly San Louis Obis­po, that illus­trate how diverse view­points on the bench influ­ence deci­sion-mak­ing on issues relat­ed to vot­ing rights, death penal­ty lit­i­ga­tion and gen­der discrimination.

Yet recent efforts to address this diver­si­ty gap have been mixed. In 2016, a coali­tion of cit­i­zens in Texas filed a fed­er­al law­suit chal­leng­ing that the state’s sys­tem of at-large elec­tions, argu­ing that its vot­ing sys­tem dilut­ed the pow­er of His­pan­ic vot­ers (in at-large elec­tions, can­di­dates are elect­ed from across the entire state, rather than on a dis­trict-by-dis­trict basis). While the fed­er­al judge hear­ing the case did not chal­lenge the claims of vote dilu­tion, she con­clud­ed that because there was no proof that race rather than par­ti­san­ship” deter­mined elec­toral out­comes, Texas was not oblig­ed to reform its sys­tem. More recent­ly, the Lawyers’ Com­mit­tee for Civ­il Rights Under Law and the NAACP Legal Defense and Edu­ca­tion­al Fund (LDF) have filed suits alleg­ing that statewide elec­tions in Arkansas and Alaba­ma, respec­tive­ly, vio­late the Vot­ing Rights Act. In both states, a Black jus­tice has nev­er first reached the state supreme court through an election.

If you go into the court­room and nobody looks like you, there are con­cerns about whether com­mu­ni­ties are being treat­ed fair­ly before cer­tain judges or jus­tices,” says Natasha Mer­le, a senior coun­sel at the LDF who is rep­re­sent­ing the plain­tiffs in Alaba­ma. Less diver­si­ty on the court brings into ques­tion its impartiality.”

Mer­le says that no Black can­di­date has ever been elect­ed to a statewide posi­tion in Arkansas, and says that a shift toward vot­ing dis­tricts, like those used in Con­gres­sion­al races, could help improve the strength and agency of Black vot­ers. But unlike the Bren­nan Cen­ter, which has long advo­cat­ed for replac­ing judi­cial elec­tions with an appoint­ment sys­tem, Mer­le believes that hav­ing elec­tions is not a bad thing for judges or the com­mu­ni­ties that they serve.

Say­ing that if you elect judges in dis­tricts they will only wor­ry about their con­stituents and maybe ignore the law is disin­gen­u­ous,” Mer­le says. The issue here is are vot­ers being heard?’ And if black vot­ers aren’t able to equal­ly par­tic­i­pate in the process and elect can­di­dates in the process — who­ev­er those can­di­dates might be — then that’s the prob­lem that we should focus on.”

The LDF’s case in Arkansas is not expect­ed to go to tri­al until next sum­mer, but there’s plen­ty to be done in the mean­time. As Ban­non points out, most vot­ers don’t focus on judi­cial elec­tions, even though they’re well-posi­tioned to affect change, whether by vot­ing for judges who sup­port their val­ues, putting pres­sure on gov­er­nors and oth­er elect­ed offi­cials to appoint more rep­re­sen­ta­tive judi­cia­ries or sup­port­ing pro­grams like pub­lic financ­ing that would reduce the influ­ence of spe­cial interests.

There are rea­sons for opti­mism, too. Last year, Melody Stew­art became the first black women elect­ed to Ohio’s supreme court and was one of four jus­tices of col­or elect­ed nation­wide. It was just the third time in Amer­i­can his­to­ry that more than one per­son of col­or has been first elect­ed to the bench in a sin­gle elec­tion cycle. Next month, Delaware, a state with a pop­u­la­tion that’s near­ly 40 per­cent non-white, will fill a vacan­cy on its Supreme Court. While the state has nev­er seat­ed a jus­tice of col­or, Ban­non says advo­ca­cy from local com­mu­ni­ties could help to change things.

This isn’t a prob­lem that can be diag­nosed in one point and solved away in anoth­er,” she says. But the pos­i­tive side is that there are many points where improve­ments can be made, which means there are lots of oppor­tu­ni­ties for cit­i­zens and activists to make a difference.”

Daniel Fer­nan­dez is a sum­mer 2019 edi­to­r­i­al intern for In These Times.
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