State supreme courts wield power over many areas of American life, from school funding to environmental protection, gun laws to voting. Even as the United States population has become more diverse, state high courts have been the domain of white judges, attorneys and staff.
Many still are: Nearly half the states don’t have a single justice identifying as a person of color.
But a growing awareness of the lack of diversity is slowly leading to change. When Ketanji Brown Jackson becomes the first Black female justice in the U.S. Supreme Court’s 233-year history, three justices of color and four female justices will sit on the nation’s highest court.
There’s a consensus that judges and justices from varied backgrounds instill public trust and confidence and bring perspectives that lead to more thoughtful decisions. Now, state supreme courts also are starting to look more like the people they serve.
Sworn in this year so far: the first Black supreme court justice in Maine, the first female justice of color in Vermont, the first Latina justice in California and the first Hispanic high court judge in Maryland. They are Rick E. Lawrence (Maine), Nancy Waples (Vermont), Patricia Guerrero (California) and Angela M. Eaves (Maryland).
“There have been some milestone appointments,” said Alicia Bannon, director of the judiciary program at the Brennan Center for Justice, a left-leaning nonprofit at the New York University School of Law. “And we’ve seen incremental improvement, but it varies state to state.”
Federal courts, especially the U.S. Supreme Court, receive intense media scrutiny, but state courts, which hear 95% of all cases filed in the United States, are more insulated. State court systems release little data about judges, justices or staff.
Yet their decisions have significant effects on residents’ lives. State supreme courts often have the last word on election redistricting plans that determine how state legislative and congressional districts are drawn. They can levy — or throw out — huge fines on corporations, and rule on education funding, environmental issues, abortion rights and gun safety measures, among other concerns. They set precedents that bind more than 23,000 lower state court judges, according to the Brennan Center.
As recently as last year, in 22 states no justices identified publicly as a person of color, including in 11 states where people of color make up at least a fifth of the population, according to a report by the Brennan Center.
Of 339 sitting state supreme court justices around the country, only 58 were people of color, according to the center.
Put another way, although about 40% of people living in the United States are non-white, only 17% of state supreme court justices are Black, Latino, Asian American or Native American.
“When someone comes into court, it should not be a surprise to see an African American judge,” Delaware Chief Justice Collins Seitz Jr. said in an interview.
Seitz has made a priority of addressing the lack of diversity in his state’s courts and legal profession. He is inspired by his late father, a trailblazing Delaware jurist who in 1950 ordered the desegregation of University of Delaware and two years later the desegregation of the state school system. The U.S. Supreme Court used Seitz’s reasoning in the landmark 1954 Brown v. Board of Education decision.
Gov. John Carney, a Democrat, appointed Seitz, who is white, as chief justice and Tamika R. Montgomery-Reeves as Delaware’s first Black female supreme court justice in late 2019.
Last May, the Delaware Supreme Court announced a steering committee to study how to increase judicial diversity. In February, Seitz and Montgomery-Reeves released “Improving Diversity in the Delaware Bench and Bar Strategic Plan,” a report also intended as a model for other states.
The 100-page report with 50 recommendations, thought to be the first detailed guide by any state on increasing judicial diversity, traces a lack of legal and judicial diversity to a pipeline problem: Fewer people of color go to college, and fewer still attend law school and become attorneys and judges. Law firms should reinforce partners’ engagement in mentorship programs to ensure attorneys of color have the support they need to advance in the profession, the report said.
“A ‘whole of system’ approach is needed” — including boosting K-12 civics education, requiring attorneys to participate in implicit bias training and increasing outreach efforts to encourage qualified attorneys from diverse backgrounds to pursue a judicial career.
Among the report’s recommendations is to collect better demographics on Delaware’s bar, a term for the attorneys licensed to practice law in a state, and on the bench, or courts.
The lack of demographic data “inhibits the ability to understand the breadth of diversity challenges within the bar,” the report said, and that makes it difficult to design or evaluate outreach efforts.
“Our state has a 28% (non-white) population, and we’d like to have the bench and bar reflect that population,” Seitz said.
The Delaware Supreme Court also would like to hire a diversity, equity and inclusion coordinator; take oral arguments to high schools — as several states, including Indiana, Nebraska and Ohio, do; create new pathways for students of color to consider a legal career; and start a judicial mentorship program.
Each state has a court of last resort that is usually, though not always, called the supreme court. States use various paths for selecting judges, including partisan or nonpartisan elections, gubernatorial appointments, commission-assisted gubernatorial appointments and legislative appointments.
The Brennan Center found some ways governors can increase diversity: If a governor, for example, fills a judicial vacancy with a person of color before the next election, the incumbent often has a leg up at election time.
Some officials say recruiting people of color is challenging.
“We have a hard time recruiting minorities to our bench,” Laurie Givens, director of the Administrative Office of the Kentucky Courts, said in an interview. “We will always have problems recruiting unless we increase pay, especially in rural areas.”
Kentucky’s system of electing state judges — by district, not statewide — has produced only one Black supreme court justice in history. William McAnulty Jr. was elected to the high court in 2006 and died of cancer in 2007.
Kentucky ranks 53rd in salaries for associate justices of 55 states and territories, according to the National Center for State Courts. An 8% raise in the works for all Kentucky state employees may help, Givens said.
In some states, candidates must give up their law practices for an appointment of just four to six years.
Recruitment is difficult even in the District of Columbia, where the president appoints judges for 15-year terms and where district judgeships often lead to federal judgeships and other posts. Opportunities in the private sector can be far more lucrative. Large law firms in Washington and other major cities offer far higher salaries than public service. Starting salaries for attorneys at some New York firms top $200,000 a year.
Salaries for associate justices of state supreme courts range from $120,000 to $274,732 with the median salary of $183,653, according to the National Center for State Courts.
“A young partner at a law firm is walking away from a lot” to take a judgeship, Chief Judge Anna Blackburne-Rigsby of the District of Columbia Court of Appeals said in an interview. (The court of appeals in D.C. is the equivalent of a state supreme court.)
Some critics argue having to run for election is a barrier to judicial diversity, but retired Minnesota Supreme Court Justice Alan Page is among those who favor elections. A standout defensive tackle on the NFL’s Minnesota Vikings, Page was the first Black justice on the Minnesota high court in the 1990s.
“The only way I had an opportunity to serve was to be elected,” Page said in an interview.
After the governor tried to extend a retiring justice’s term past the election date, thwarting Page’s goal of running for the court, Page filed a lawsuit in the Minnesota Supreme Court to get his name on the ballot in 1992. He won the election. Reelected three times, he served until 2015, when he reached the mandatory retirement age of 70.
He added that governors who make appointments “get people who look like them.”
Page rejects the idea there are too few qualified candidates: “My experience is there are highly qualified, extremely talented people from diverse backgrounds here in Minnesota and in virtually every state. There may not be as many, but they’re there.”
Two months after George Floyd was murdered by police in Minneapolis in May 2020, as protests erupted around the country, the Conference of Chief Justices and the Conference of State Court Administrators adopted a resolution that said structural racism disproportionately affects people of color and erodes public confidence in the fairness of the judicial system.
The resolution led to a 150-member working group of lawyers, judges and officials from legal organizations that is providing guidance for courts, called a Blueprint for Racial Justice.
“The perception of fairness is as important as fairness itself. Public trust and confidence in the judicial process is vitally important,” said Blackburne-Rigsby of the D.C. Court of Appeals, a co-moderator of the Blueprint’s diversity work group.
“When people see people who look like them in court, I think it helps,” she said.
On the high-court level, where decisions are made by panels of three judges, having diverse perspectives leads to better decisions, Blackburne-Rigsby said. “Sometimes individuals can have blind spots, and discussions which bring diverse viewpoints to bear can help minimize blind spots.”
Edwin Bell, a longtime court administrator in Georgia, was named director of racial justice, equity and inclusion at the National Center for State Courts in 2020.
“Part of the challenge is an awareness of the lack of diversity and what the ways are to address it,” Bell said. “We’re not advocating for a quota system in any way, shape or form, but we do want to identify best practices.”
The center wants to build an online job application portal for state court positions, similar to the portal federal courts around the country use to fill law clerk and staff attorney vacancies. Working with historically Black colleges and Hispanic groups, Bell hopes to have the state courts portal operational by the end of the year.
———
