Despite Small Improvements, State Supreme Courts Remain Unrepresentative

A front portion of the U.S. Supreme Court Building with teal, blue and red colored pillars, with two light blue lines in the background on graph paper.

State courts hear 95% of all cases filed in the United States and more than 70 million cases each year. As a result, state courts hear the vast majority of important voting rights and election cases, and these cases often make their way to state Supreme Courts. 

In 2020, state Supreme Courts played a major role in defending against attacks on voters and democracy, like in Pennsylvania and Wisconsin, where the state’s highest courts thwarted attempts to overturn the 2020 presidential election. But state courts can also issue dangerous decisions that harm our democracy and suppress voters. Since 2020, we’ve seen state Supreme Courts uphold gerrymandered maps and reinstate restrictive voting laws, both of which can disproportionately harm voters of color.

The justices who sit on these courts are integral to understanding the decisions they issue. As the country becomes increasingly more diverse, our state Supreme Courts should similarly reflect that change and bring the lived experiences necessary to fully understand the impact that their decisions can have on certain communities.

In 2019, the Brennan Center for Justice published “State Supreme Court Diversity,” a data-driven report that examined how state Supreme Courts do not share the same diversity that the United States at large enjoys. The Brennan Center has updated that report four times since then and recently released its 2023 update, which spans from May 2022 to May of this year. The report highlights how the discrepancy has remained an issue since 2019, and that for the most part, progress continues to be slow.

Court demographics have changed only marginally since the last update.

While previous years saw little improvement in demographic diversity on the courts, this year saw even less movement. Justices of color make up only 19% of state Supreme Courts nationwide, up just 1% from last year. The number of female state Supreme Court justices also minimally increased by 1%, rising ever so slightly to compose 42% of the courts. 

Not only are these demographic breakdowns not representative of the U.S. population — as people of color and women make up 40% and over 50% of the population, respectively — but these numbers are especially notable given that women have outnumbered men in law schools since 2016, and the country as a whole continues to diversify. 

Seven states — Alabama, Alaska, Delaware, Indiana, Kentucky, North Dakota and Utah — added at least one new white justice to their already all-white benches, and South Carolina’s Supreme Court consists only of men. Six other state Supreme Courts have just one female justice on the bench. 

There were some bright spots since the last report, however. Nevada, Michigan and Illinois all swore in their first Black female justice. In contrast to South Carolina, Illinois achieved a majority female bench, and Nevada swore in its first Asian American justice. 

Large minority communities still have no representation on state Supreme Courts.

Despite state Supreme Courts often weighing in on lawsuits directly affecting voters of color, the justices deciding these cases don’t reflect these communities. Only 10 state Supreme Courts have a Latino justice, only eight have an Asian American justice and only three have a Native American justice.

But when exploring this data further, the reality is even darker. In 12 states where people of color comprise over 20% of the population, there is no justice of color on any of the highest courts. In 16 states and Washington D.C., where the population is over 10% Latino, there is similarly no Latino representation on the courts. And of the new white justices this year, 13 are on the bench in states where people of color make up at least 20% of the population. Some particularly egregious examples include Alabama and Alaska, where people of color make up 37% and 42% of the state’s population, respectively, yet they have no justice of color on either of their state Supreme Courts.

Former prosecutors still heavily outnumber former public defenders, but progress has been made recently. 

Similar to a lack of demographic diversity, state Supreme Courts also struggle with a diversity of professional backgrounds. The collection of state Supreme Court justices nationwide is dominated by former prosecutors. Over a third — or 38% — of justices are former prosecutors compared to the 9% of former public defenders. Crucially, according to the report, less than 1% of male justices and just 4% of female justices have worked as civil legal aid attorneys. These are attorneys who work to give free legal assistance to low-income individuals needing help in civil cases.

However, unlike demographic diversity, we have seen progress in the last year to close this professional background gap. Of the justices who have joined a state Supreme Court this year, eight are former prosecutors and six are former public defenders, a much more equal distribution than years past.

Diversity shortcomings at the state court level lie in stark contrast to progress made federally under President Joe Biden.

Although progress has been slow at the state level, a completely different story is being written at the federal level, where Biden has made diversifying the judiciary a key focus of his administration. Not only did he nominate now U.S. Supreme Court Justice Ketanji Brown Jackson, the first former public defender and first Black female justice in the court’s history, but more than two-thirds of his nominees have been people of color and 64% have been female. Moreover, more than half of Biden’s nominees have been professionally diverse, including public defenders, civil rights lawyers, legal aid lawyers and labor lawyers, according to Balls and Strikes. 

While a more diverse judiciary does not guarantee representation that is more responsive and substantive, research has shown that diversity within the courts does have a positive impact. These benefits include increased political engagement, more nuanced deliberations and higher public confidence in the court. 

Unfortunately, the Brennan Center’s report demonstrates that despite the clear need for more representation, state Supreme Courts across the country continue to fail to reflect America’s increasing diversity, with progress on the matter becoming even slower. Until this changes, we are left with dozens of state Supreme Courts that will continue to issue dangerous decisions impacting voting rights and democracy, decisions that are especially harmful to communities of color.