Finding a disproportionate majority of state supreme court justices are white men, a study by the Brennan Center for Justice at the New York University School of Law highlights the lack of diversity on America’s highest state courts, which is being described as a crisis.
The Brennan Center study, “State Supreme Court Diversity,” notes the gap between the proportion of people of color on supreme courts and their representation in the U.S. population was wider in 2017 than in 1996.
As of May 2019, people of color compose nearly 40 percent of the U.S. population but hold only 15 percent of state supreme court seats, according to the study. Also, although women make up about half the population, they hold only 36 percent of the seats on the states’ highest courts. White men, comprising less than a third of the population, constitute 56 percent of supreme court justices.
Indiana reflects the diversity divide. The Hoosier state is one of 24 states that has an all-white supreme court, even though 21 percent of its residents are people of color, according to the study. In addition, Indiana is one of 17 states with only one female justice.
Myra Selby became the first woman and first African-American to serve on the Indiana Supreme Court when she was appointed in 1995. She stepped down in 1999 and was replaced by Robert Rucker, who was the first African-American man to be appointed as an Indiana justice. He retired in May 2017.
Chief Justice Loretta Rush is currently the only woman on the Hoosier supreme court.
“Both state and federal judges make decisions that affect virtually every facet of our lives, from voting rights to educational equity, from disability rights to immigrant justice, from abortion access to safety in the workplace,” Vanita Gupta, president and CEO of The Leadership Conference on Civil and Human Rights, wrote in the introduction to the study. “And having a bench that reflects and represents diverse perspectives is core to achieving a system of justice that lives up to its name. Yet the lack of diversity in our nation’s courts is at crisis level.”
However, Indiana’s use of merit selection, rather than election, to choose individuals to serve on the Supreme Court may provide a bright spot.
The Brennan Center report examined new data and discovered the method of selecting justices has impacted the composition of state supreme courts. Namely, the study concluded judicial elections “have rarely been a path for people of color to reach a state supreme court bench.”
“…(P)eople of color have consistently made up a higher proportion of appointed, as compared with elected, first-time supreme court justices,” the study found. “Incumbent justices of color have also disproportionately been challenged and lost elections once on the bench, as compared with incumbent white justices. By contrast, by most measures, women have fared similarly under both elective and appointive methods (without controlling for race).”
The study noted from 1960 to 2018, only 17 justices of color first reached the bench through an election, comprising 4 percent of initially elected justices. During that same period, 141 justices of color were appointed to the bench, comprising 12 percent of all appointed justices.
During that same period, only six women of color first reached a state supreme court bench through an election, making up 1 percent of all initially elected justices. Women of color made up 3 percent of all appointments.
Also, the data identified a backward trend. From 2000 through 2018, only 5 percent of justices first elected to the bench were people of color. This is a lower percentage than in 1980 through 1999, when 6 percent of justices first elected to the bench were people of color.
In fact, more justices of color were first elected to the bench in the 1990s than in the 2010s. And from 2003 to 2015, not a single person of color first reached the bench through an election.
Again underscoring the outcome of merit selection, the study found people of color have made up a higher proportion of initially appointed justices as compared to initially elected justices during every election cycle since 1965-1966.
However, that streak was interrupted by the 2017-2018 election cycle, when 31 percent of all initially elected justices were justices of color, while 13 percent of all first-time appointed justices were of color.
Even so, the Brennan Center was cautious about seeing a long-term shift because of some “idiosyncratic circumstances.”
In particular, several of the first-time elected justices of color in 2018 had wins that suggest they were part of a Democratic wave that swept through some states. In addition, the unusually low proportion of people of color being among appointed justices during the 2017-18 cycle was likely due in part to the political composition of governors’ seats. Republicans held the highest number of governors’ seats since at least 1939, and historically, a higher proportion of justices of color have been appointed by Democratic governors.
“Neither elections nor appointments have generally produced courts that are reflective of the diversity of the communities they serve, and both systems can impose hurdles for diverse candidates,” the study concluded. “For states that use appointment systems, there is substantial research suggesting ways that judicial nominating commissions and governors can encourage diversity among the applicant pool for judgeships through their recruitment processes, as well as well-developed best practices for how to mitigate implicit biases in interviewing and evaluating potential judges.”