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President Joe Biden’s pledge, reiterated after Justice Stephen Breyer last week announced his retirement from the Supreme Court, to appoint a Black woman to the nation’s highest court has drawn attention to the lack of diversity in the U.S. judicial system.
Some have criticized the president’s move as racist and exclusionary (white men have held nearly all the court’s seats for its entire history, so if they have to sit out this round, that’s hardly a hardship). Rather, like Presidents Ronald Reagan, George H.W. Bush and Dwight Eisenhower before him, Biden understands that increasing the diversity of the Supreme Court is an important reflection of the diversity of America and its citizens.
There have been 115 justices on the U.S. Supreme Court. Only five have been women, including three who are currently serving – Elena Kagan, Sonia Sotomayor and Amy Coney Barrett. Only two have been Black, including current Justice Clarence Thomas. There has been one Hispanic justice – Sotomayor. None have been Native American or Asian.
In other words, for decades, the court was limited to just one demographic of Americans – white men. That’s exclusionary.
U.S. Supreme Court justices must have a strong understanding of our Constitution, laws and legal precedents. That’s true regardless of their race or gender. But, if too many judges share the same background and perspective, the court can miss or neglect perspectives that can inform their decisions. Beyond this, if those impacted by the law only see judges that are unlike them, they can easily lose faith in our judicial system.
“Our court system should be filled with judges who not only are intelligent, thoughtful, and faithful to the rule of law, but also bring diversity of experience and background,” Yvette McGee Brown, a former justice on the Supreme Court of Ohio, wrote in the forward to a Brennan Center report on judicial diversity.
McGee Brown noted that in too many instances “the only people of color in a courthouse are in handcuffs,” leading many Americans to question the fairness of our judicial system.
“It’s the integrity and judgment of these men and women that allow our constitutional democracy to move forward,” she added. “When people lose faith in the judiciary, they lose faith in democracy.”
This isn’t just a problem at the Supreme Court level.
In 24 U.S. states, the highest court had only white justices on the bench in 2020 even though people of color make up a quarter of the population in eight of those states, according to a recent analysis by the Brennan Center for Justice at New York University School of Law. Thirteen states, including Maine, have not had supreme court justice of color, at least since 1960 which is as far back as researchers could find reliable records.
Nationally, women hold only 36 percent of the seats on top state courts. Seventeen states have only one female justice. Three women currently serve on the seven-member Maine Supreme Judicial Court, which is headed by Valerie Stanfill, the second woman to hold the seat.
White men account for 58 percent of state court judges nationally, even though they make up less than one-third of the U.S. population, according to a recent report from the American Constitution Society. Less than one-third of state judges are women, and only 20 percent are people of color.
In state criminal courts, more than two-thirds of defendants are people of color while 80 percent of judges are white, the report found.
These gaps persist in both states where justices are appointed and elected.
The judges on America’s courts – from state courts to the U.S. Supreme Court – woefully underrepresented the country’s diverse population. Rectifying that imbalance will improve the courts and Americans’ faith in them.
