New Findings Highlight Lack of Diversity on State Supreme Courts

State supreme courts across the United States fail to reflect the diversity of the communities they serve. This lack of diversity mirrors and perpetuates broader systemic inequalities within our judicial system. Despite some progress in recent years, a new Brennan Center analysis indicates significant gaps in demographic and professional representation on the bench that require urgent attention.

Since 2019, the Brennan Center has collected and published data on state supreme court diversity. While 19 new judges joined their states’ highest courts since our last analysis in May 2023, there has been little change in overall demographic or professional diversity on the state bench. For the past two years, 18 supreme courts have lacked even a single justice who identifies as a person of color, including in 12 states where people of color constitute at least 20 percent of the population. Women of color are even rarer on the bench: 26 states have no women of color serving on their supreme court.

The professional backgrounds of state supreme court justices also continue to reveal a significant imbalance. Thirty-eight percent of justices come from prosecutorial backgrounds, whereas only 9 percent have experience as public defenders.

Despite stagnation on certain fronts, there are also noteworthy milestones to celebrate. Seventeen states now boast female majorities on their state supreme court benches, up from 16 states last year. Oregon welcomed Justice Aruna Masih, the first South Asian person to serve on the state’s high court and a former labor and civil rights lawyer. In New Jersey, Justice Michael Noriega became the first public defender and third Latino justice to be appointed in the court’s history. These changes illuminate the fruits of successful advocacy efforts and appointment processes that have prioritized diversity as a value.

But systemic barriers persist. There is a critical need for more data and research to understand the hurdles to achieving greater diversity on the bench and the impact that a diverse bench has on our judicial system. Among other challenges, detailed demographic data on our state courts remains scarce and difficult to access, which hinders efforts to identify and effectively address areas for improvement. After all, as Harvard economist Iris Bohnet has noted, “what does not get measured cannot be fixed.”

Among the 15 states that have recently appointed or elected new justices, only Hawaii and Missouri have made detailed information on the demographic composition of their supreme courts publicly available through their websites. Though some states’ judiciaries may provide that information upon request, members of the public face significant hurdles to accessing such data, including figuring out whom to ask and following up when emails and calls go unanswered. Some states, like Wyoming, simply do not track demographic information with respect to state judges.

Moreover, even where data is made publicly available, it is often confined to judges’ race and gender. While these are key metrics of judicial diversity, there are many other aspects of identity that are also critical to achieving a truly representative bench, including disability status, sexual orientation, and religion. Data on the effects of intersectionality, or the compounded effects of belonging to two or more historically marginalized identity groups, is similarly important but often overlooked. 

In addition to more robust and transparent data, there is also a need for more scholarship relating to diversity on state court benches. In her 2021 testimony to the House Subcommittee on Courts, Intellectual Property, and the Internet, Harvard Kennedy School professor Maya Sen highlighted the dearth of research examining the effects of Latino, Asian American and Pacific Islander, and Native American judges on judicial decision-making in federal courts, given the relatively low numbers of judges belonging to these groups. This lack of research is even more significant in the state court context, where the underlying data is often too scarce to draw meaningful conclusions.

Moreover, few studies on the effects of demographic diversity on judicial decision-making have been published after 2017. More recent studies have examined the effects of judges’ professional experience and ideology, but these have also been largely focused on the federal courts. The handful of studies available on judicial diversity in state courts have primarily focused on single states.

The resounding takeaway from this scholarship is that judges’ backgrounds influence the ways in which judges think about the cases in front of them. Studies have found, for instance, that Black judges tend to issue shorter criminal sentences compared to their non-Black peers and that judges with corporate law or prosecutorial backgrounds are more likely to rule against workers in employment disputes. They have also found that all-male appeals panels hearing immigration appeals exhibit biases based on the gender of the litigant whereas mixed-gender panels do not.

Research also demonstrates that the value of judicial diversity is not just in adding new, individual perspectives to the bench, but in fostering the ability of judges on a given bench to challenge and enhance one another’s perspectives. In other words, a diverse bench leads to richer, more thoughtful jurisprudence.

Taken together, these studies show that judicial diversity affects substantive decision-making and improves the quality of judging by ensuring that multiple perspectives are considered.

Such scholarship is vital in illuminating the ways in which having a representative bench can shape American jurisprudence and encourage greater confidence in the courts. More scholars should consider examining the effects of judicial diversity in the state court context, including through comprehensive surveys of courts across the 50 states. Further, scholars should expand their focus to a greater array of underrepresented identities, looking beyond the Black/white binary when it comes to race, and exploring other identity vectors such as sexual orientation or disability status.

In addition, not many studies to date have focused on factors that affect judges’ experiences once they reach the bench, including the impacts of implicit bias or the effects of tokenism or stereotype threat on counter stereotypical judges. Such studies would underscore that an important aspect of judicial diversity is fostering environments where diverse perspectives are actively heard and respected and lead to reforms relating to court structures and processes. For instance, one influential study found that female justices on the U.S. Supreme Court were more frequently interrupted during oral arguments than their male counterparts, while a follow up study suggested that procedural changes to how justices pose questions, implemented since the original study, helped eradicate some of these disparities. Future scholarship should consider adding to the discourse on what factors empower judges from historically marginalized identities within their chambers.

The road to a diverse judiciary is long and fraught with challenges. To ensure our highest courts reflect our diverse society, we need more comprehensive and transparent data collection and expanded scholarship in the field of judicial diversity. Doing so will help communities hold our leaders accountable to make our courts as diverse as the communities they serve.

Chihiro Isozaki is a counsel in the Democracy Program at the Brennan Center for Justice. 

Zoe Merriman is a program associate in the Judiciary Program at the Brennan Center for Justice.