On Wednesday, Justice Stephen Breyer announced that he will retire from the Supreme Court, allowing President Biden to appoint a successor who could serve for decades. Although this appointment won’t sway the ideological balance of the conservative-leaning court, it will increase the likelihood that there’s a more liberal perspective represented in the long term. During his campaigning, Biden promised that if elected president, he’d advance Supreme Court representation by putting the first Black woman in that position. And later, the White House confirmed in a press conference that they plan to do so (CNN).
As we’ve already seen, the Supreme Court is addressing some critical issues that disproportionately affect the rights of women and marginalized people. Decisions on cases ranging from affirmative action to vaccine mandates and abortion will shape our nation for decades. Ensuring liberal representation in the long-term will help to protect those rights for future generations.
• Sign the petition to encourage the Biden administration to advance Supreme Court representation by appointing a Black woman to the bench.
• Support the MCCA LMJ Scholarship, which grants scholarships of $10,000 to students for their first year of law school to increase the diversity pipeline. Learn more and donate.
But although Supreme Court justices hold significant power, we can also do more to build a more diverse pipeline and increase representation across the federal justice system. The Supreme Court decides on less than 100 decisions on cases each year. Although they are critical, many more cases are decided by the 94 federal district courts and 13 circuit courts that act as the first level of appeal (U.S. Department of Justice). It’s critical we increase representation in the federal court system at large, where more than 73% of sitting judges are men and 80% identify as white. There are only two American Indian federal judges, and less than 1% of judges publicly identify as LGBTQ+ (Center for American Progress). The first judge of color on the Supreme Court, Justice Thurgood Marshall, was appointed in 1967, 191 years after the founding of America (Washington Post). The authors of one study note that there’s no publicly available data on judges with a disability, which is “problematic and deserves more attention” (Center for American Progress).
Data for state courts is also disappointing. Only 15% of state supreme court seats nationwide are “held by individuals who are Black, Asian, Latino, or Native American,” while women hold just 36% of seats. 24 states currently have an all-white supreme court, including eight states in which people of color are at least 25% of the population (Brennan Center).
A few former presidents – both Democratic and Republican – have committed to diversifying the federal judiciary, including President Carter and President Clinton. But President Obama made the most significant strides. Of his 324 judicial nominees, over 60% were people of color, women, and sexual or gender minorities. He also nominated and confirmed more women than any other president in history (Center for American Progress). President Trump’s judicial picks, 91% white and 81% male, are “the least racially and ethnically diverse of any presidential administration over the past 30 years” (Center for American Progress).
This is important because the diversity of the federal judiciary increases the likelihood that decisions will represent the needs of marginalized communities. Judge Tashima lived in an internment camp as a child during World War II. He spoke about how that experience influenced his decision-making. The data proves it: he voted for more equal protection opinions than his Ninth Circuit colleagues (California Lawyers Association).
“Because we are all creatures of our past, I have no doubt that my life experiences, including the evacuation and internment, have shaped the way I view my job as a federal judge and the skepticism that I sometimes bring to the representations and motives of the other branches of government”.
Atsushi Wallace Tashima, Senior United States Circuit Judge of the United States Court of Appeals for the Ninth Circuit, via California Lawyers Association.
A more diverse court would also sway public trust, which is important as younger voters feel increasingly disillusioned by our political system. The 1999 National Conference on Public Trust and Confidence in the Justice System identified three pressing issues: unequal treatment in the justice system, high cost of access to the justice system, and lack of public understanding (Perceptions of Fairness and Diversity in the Florida Courts). A 2014 Pew Research Center survey found that 68% of Black people feel that the courts mistreat Black people compared to 27% of white people and 40% of people who identify as Hispanic (Pew Research Center).
“People look at an institution and they see people who are like them, who share their experiences, who they imagine share their set of values, and that’s a sort of natural thing and they feel more comfortable if that occurs.”
Elena Kagan, Associate Justice of the Supreme Court of the United States, via NYTimes.
This year, over 200 federal judges are eligible for senior status, which means new candidates can take their place. And of those 200 judges, more than half are white males (Center for American Progress). We can only advocate for the Biden administration to appoint someone that will increase Supreme Court representation, but it’s up to us to use our voices to influence decisions on the state level and support diverse, qualified candidates.
• On Wednesday, Justice Stephen Breyer announced that he will retire from the Supreme Court, allowing President Biden to appoint a successor.
• Efforts to increase representation in the federal judiciary were dismantled by the Trump administration.
• The diversity of the federal judiciary influences public perception of the political system.
• Increasing the diversity pipeline can help ensure more diverse candidates are nominated and confirmed.