Diversifying the Judiciary

Imagine you are walking into a courtroom. The judge, the prosecutor, the defense attorney, and the jury are all white. The only person of color is the man standing trial. Due to generations of systemic racism, this is a typical scene in American courtrooms across the nation. Both state and federal courts are overwhelmingly composed of white, male judges. Federally, seventy-three percent of judges are white and sixty-seven percent are male. At the state level, twenty-four states have all-white supreme courts and thirteen of those have never had a person of color serve as a state supreme court justice. People of color and women are severely underrepresented in the judicial system. To combat this, President Biden has made diversifying the federal courts a goal of his administration. However, increased diversity on the bench cannot cure generations of systemic racism that has plagued the judiciary alone.

The underrepresentation of racial minorities on the bench is a result of many variables, such as racial discrimination and inequitable access to law schools. Other factors, including whether the state uses a gubernatorial appointment process or elections, provide for the lack of diversity on state supreme courts. The Brennan Center for Justice found that people of color are more likely to be appointed to a state supreme court than they are to be elected. The same study also concluded that incumbent justices of color are 19 percent more likely to be challenged and 8 percent more likely to lose a state supreme court election than their white colleagues. Because court races are not well-followed and most voters are uninformed about the candidates, surname bias presents itself as another inhibitor of judicial diversity. Some uninformed voters opt for candidates with the “white-sounding name” rather than research the options. To offset the increasing cost of running for a judge position, candidates take stances on issues to get campaign donations from interest groups. This has contributed to the lack of judicial diversity because white candidates receive more campaign donations than candidates of color.

Contentious research indicates that diversifying the judiciary cannot be framed as a quick and easy solution to mass incarceration nor the disproportional representation of people of color in prisons. Some studies show that white judges are more likely than judges of color to sentence offenders to prison. Research conducted at Princeton found that the presence of a Black judge on a panel increases the likelihood that non-Black judges will rule in favor of affirmative action policies and plaintiffs claiming Voting Rights Act violations. At the same time, competing research provides that judges of color may deliver harsher sentences because they feel pressure to prove themselves to their white colleagues and community. Judges of color feel pressure to demonstrate that they are not pursuing a political agenda, so they often give longer sentences to people of color than their white colleagues would have delivered. This underscores the need for greater representation so that judges of color do not feel compelled to convince their colleagues that they are not trying to “go easy” on defendants of color.

Diversifying the bench is a necessary step for criminal justice reform, which is why it has been a priority for the Biden administration. However, it should not be a substitute for substantive criminal justice system reform. The mere presence of judges of color does not indicate that the system is working nor that it is not racist. Therefore, diversifying the bench should not become the only solution to achieving systemic reform. Most advocates know this and argue that diversifying the bench is in part about enhancing legitimacy. Advocates hope that if people see a demographically representative courtroom, they will put more trust in the system.

However, the court system requires deeper reform before it deserves legitimacy from people of color. The goal of diversification cannot be to enhance court legitimacy by means of creating a fairer courtroom; deeper, broader, more substantive criminal justice system reform is necessary. Instead, diversification could enhance legitimacy through symbolic representation, which, however, runs the risk of being co-opted. The presence of judges of color can be used to keep deeper systemic racism further from the public eye, because diversity can be manipulated as proof that the system works. This manipulation of public opinion helps ensure that systemic racism stays entrenched and upheld. Judges of color cannot be tokenized in order to convince people of color that they are being treated fairly under the law. Judges of color should not be used to persuade people of color that their sentence was fair just because it was delivered by a fellow person of color.

The courts need legitimacy if they want the public to trust and respect them as an institution. Diversifying the courts is a part—but not the only— necessary change on the path to real justice for all. People of color are disproportionately incarcerated, live in over-policed communities, and face longer sentences for the same crimes that are committed by white people. A diverse judiciary will not be enough to ameliorate these issues, but it is a start. Ending state supreme court elections is one step that can help achieve that goal. Americans living in states with supreme court elections should contact their legislators to let them know that they support a gubernatorial appointment process to the state supreme court. However, it cannot be neglected that the racial disparities within the United States legal system require institutional change across the board, not simply symbolic representation.