State Supreme Courts Falling Short on Racial Diversity


Alice Kang
By 
David Golbitz
The Daily Record

State supreme courts across the country continue to come up short when it comes to having diversity on the bench, according to a recent update to a 2019 Brennan Center for Justice at NYU Law report.

The 2019 report, “State Supreme Court Diversity,” studied racial, ethnic and gender composition of the nation’s state supreme courts. The April 2021 update also includes statistics about the professional backgrounds of state supreme court justices for the first time.

The report found that 22 states have all white supreme courts -- including Nebraska -- even though people of color in 11 of those states make up 20% or more of the population. In fact, while people of color make up 40% of the national population, they comprise only 17% of all state supreme court justices, up from 15% in 2019.

The problem with having a less diverse court is that it may not be representative of the population it serves, according to Alice Kang, an associate professor of political science and ethnic studies at the University of Nebraska-Lincoln.

“Diversity among supreme court justices is necessary for reasons of fairness and equality,” Kang said in an email. “A diverse decision-making panel is more likely to draw on a wider range of sources and considerations. The deliberation is richer and broader if members of the court bring a multitude of perspectives and life experiences to bear.”

A less diverse court might not be willing or even able to consider a fuller range of interpretations, Kang said.

“It might have a limited set of viewpoints compared to a more diverse court,” Kang said.

The Iowa Supreme Court is 86% white. One of the seven Iowa justices, Justice Christopher McDonald identifies as a person of color. McDonald was born in Thailand before being raised in Des Moines.

Women hold 39% of state supreme court seats — up from 36% in 2019 — though 12 states have just one woman on the bench.

The supreme courts of Nebraska and Iowa both have seven justices, and there are two women on each state’s highest court.

In order to produce a more diverse court, a community needs a diverse pool of candidates to choose from, Kang said, citing a study from Utah State University.

“A study by Greg Goelzhauser finds that the more people of color who are lawyers in a state, the more likely you have a woman of color on the state supreme court,” Kang said.

Kang said it is incumbent upon law firms and other organizations that hire lawyers to support lawyers who are people of color.

“We should be asking why aren’t there more lawyers who are people of color, and what proactive measures can be adopted to encourage their entry to law school, recruitment and promotion,” Kang said.

Kang believes that a lack of diversity on a state’s courts is a systemic problem and that state leadership must make diversification of its judiciary a priority.

“If there was no bias in the pathways to becoming a supreme court justice, then one would expect the composition of a court to reflect its population,” Kang said. “Decades of homogeneously composed supreme court benches is a sign of unfairness in the system.”

While creating a more diverse pool of judicial candidates is still necessary, Nebraska is already in a position to make its courts better reflect its population, Kang said.

“We have to recognize that there are already many women, people of color and women of color who would be excellent judges on the Nebraska Supreme Court,” Kang said. “We don’t need to wait to choose them, they can be selected now.”

The 2021 Brennan Center update also found that 43 states have at least one former prosecutor on the supreme court, compared to just 19 states with a former public defender on the bench.

The majority of state supreme court justices — 79% — worked in a private practice at some point before their judicial appointments, including six out of seven Nebraska supreme court justices. Only Chief Justice Heavican went straight from law school to working as a county attorney.

All seven of Iowa’s justices worked in private practice before being appointed to the bench.

To view the Brennan Center for Justice report in its entirety, go to bit.ly/2SBPi84.

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