When it comes to diversity in the legal profession, we often focus on the federal judiciary, law firms, and in-house legal departments. But where most legal work gets done and lay people have the most contact with the law is in state courts. And the diversity scorecard in state courts often gets ignored. But the Brennan Center of Justice has, since 2019, focused on just this issue, at least for the highest courts in each state. The Center recently updated its State Supreme Court Diversity. The update results, unfortunately, were consistent with prior years and, in a word, are appalling.
The Study was based on data shared by Professor Greg Goelzhauser at Utah State University. It is based on detailed demographic and professional information from a number of sources. These sources include biographical statements, obituaries, newspaper articles, and listed membership in affinity organizations.

The key findings:
  • In 20 states, no justices identify themselves as people of color. In 12 of these states, people of color make up at least 20 percent of the population.
  • There are no Black justices in 28 states, including the six states where Black residents make up at least 10 percent of the population.
  • There are no Latino justices in 39 states, including the 15 states where Latino residents make up at least 10 percent of the population
  • There are no Asian American justices in 43 states, including three of the four states with the largest Asian American populations.
  • There are no Native American justices in 47 states, even in three of the four states with the largest Native American populations.
  • Across all state high courts, just 18 percent of justices are Black, Latino, Asian American, Native American, or multiracial. By contrast, people of color make up over 40 percent of the U.S. population.
  • Men hold 59 percent of state supreme court seats. In 9 states, only one woman is on the supreme court bench.
  • 39 percent of sitting justices are former prosecutors, while only 7 percent are former public defenders.
  • 15 states have never had a Black supreme court justice.

The Study confirms the sad fact that the highest court in most states is composed primarily of old white men. For most people of color and, to a lesser extent, women, their exposure to the court system is an exposure to a system made up of judges that don’t look like them or come from similar backgrounds. That do not have the same set of experiences and problems as do they. That has no direct exposure to the culture and prejudices these people face daily.

 

For the courts, the lack of diversity deprives them of exposure to different viewpoints and understandings. This lack of exposure can’t help to lead to decisions that do not fully take into account the needs and concerns of their constituents. For the constituents, the lack of diversity undermines trust and confidence that they will get a fair shake. Poor decisions and a lack of trust do little to advance respect for the rule of law.

 

 

The fact that there are few people of color and a minority of women also says something about the general population

And perhaps most disturbing, most state court judges are elected. So the fact that there are few people of color and a minority of women also says something about the general population. It says something about the electability of people of color and women. It says something about our society that is troubling.
The statistics are so bad it’s hard even to know where to start
The statistics are so bad it’s hard even to know where to start. It will take a concerted and combined effort across the profession to make headway. But the profession’s track record doesn’t give one confidence that any real progress will be made. Several diversity studies, particularly of law firms and in-house legal departments, clearly demonstrate that little tangible progress has been made. This despite all the lip service law firms and legal departments pay to diversity. And diversity in state courts is rarely even discussed or mentioned.

Thanks to Brennan Center for revealing the monumental problems we face. Now it’s up to the profession to do something.

 

Photo by Tingey Injury Law Firm on Unsplash