People For the American Way Foundation

70 Years Since Brown: Advancing Diversity in the Courts

News and Analysis
70 Years Since Brown: Advancing Diversity in the Courts

During May, the country is celebrating the 70th anniversary of Brown v. Board of Education. That unanimous Supreme Court decision striking down legally required school segregation was a watershed moment for America. For nearly a century, the Supreme Court had refused to enforce the Reconstruction Amendments’ prohibition against racial discrimination. Eventually, the Court would apply it in any number of other contexts beyond public schools.

In 1954, Black Americans were excluded from many aspects of public life and from positions of authority – including as federal judges. We have a far more diverse federal bench than we did 70 years ago. Much progress has been made under President Biden. He has surpassed all his predecessors in the diversity of his judicial nominees.

Why does judicial diversity matter?

Having federal judges who reflect the diversity of our nation has a number of benefits. Among them is legitimacy. When people who are affected by the court system never see anyone resembling them making the decisions, the courts’ legitimacy suffers.

In addition, increased diversity makes it more likely that judges will understand the impact of their decisions. This is especially so at the Supreme Court and circuit courts, since their decisions are made by groups of judges in deliberation with each other. When judges bring diverse life experiences into those conversations, that can help all the judges see perspectives that they might have overlooked previously.

One example came in the case that Brown overturned. The Court upheld “separate but equal” in the 1896 case of Plessey v. Ferguson. The majority wrote that enforced racial segregation did not stamp Black Americans with a “badge of inferiority.” Instead, they wrote, Black citizens chose to interpret Jim Crow restrictions that way. Perhaps the justices needed a few Black colleagues in the room with them to tell them that was ludicrous.

A wise judge considers how their rulings will affect people who are different from them. Stepping outside one’s own experience is easier when you consult with a diverse group of colleagues. For instance, a wealthy white male judge who has never had to fear police violence may not have a full understanding of the reality of police encounters for people of color. But Black judges are more likely to understand, and justice is more likely to occur when they bring that awareness to the bench and can share it with other judges.

Unfortunately, not all judges are open to acknowledging other people’s experiences. Justice Antonin Scalia once made this clear during oral arguments over whether the government’s use of a cross as a war memorial violated church-state separation. Scalia saw no problem with a government-sponsored religious symbol in this context. He stated that the cross is “the most common symbol of the resting place of the dead.” When the lawyer, who was Jewish, pointed out that Jews don’t use crosses to honor their dead, Scalia actually became angry.

How diverse (or not) were the courts in 1954?

On the day the Supreme Court decided Brown, the federal judiciary was nearly completely White. Only two people of color had ever been confirmed as federal judges: Third Circuit Judge William Hastie and U.S. Customs Court Judge Irvin Mollison were both Black men nominated by President Truman.

As for women, the picture was not much better. Only three women had served as federal judges: Florence Allen (6th Circuit), Burnita Matthews (District of Washington DC), and Genevieve Rose Cline (U.S. Customs Court). And it would be several decades before any federal judges were out LGBTQ+ people, and even more before any were Muslim Americans.

The federal courts hardly looked like America. But they did look like the narrow slice of America that held all the power.

How diverse are the courts today?

We have made substantial progress in diversifying the bench since 1954. Nevertheless, we still have a ways to go.

At the circuit court level, 14 percent of currently active judges are Black, nine percent are Latino, nine percent are AAPI, and 41 percent are women. And at the district court level, 16 percent of currently active judges are Black, 12 percent are Latino, seven percent are AAPI, and 39 percent are women.

How is President Biden improving the picture?

President Biden has prioritized diversity in the courts. He has far exceeded previous administrations in the diversity of his nominees. Here are just a few highlights:

  • Nearly two thirds of Biden’s confirmed judges have been people of color.
  • Forty percent have been women of color.
  • Biden has named more Black women to federal circuit courts (13) than all his predecessors combined (8).
  • More than a third of all Black woman federal judges in U.S. history were put on the bench by President Biden.
  • President Biden has appointed more than one third of all AANHPI lifetime judges in U.S. history.
  • President Biden has appointed more than one third of all active Latino/a lifetime judges.
  • Before Biden was president, only 4 Native Americans had ever been federal judges. Biden has already put an additional 4 Native Americans onto the bench.
  • President Biden has already named as many out LGBTQ+ judges (11) as President Obama did over eight years, including the first three out lesbians ever to serve on a federal circuit court.
  • President Biden named the nation’s first Muslim American lifetime federal judges, and others have their nominations currently pending before the Senate.
  • Many of President Biden’s confirmed judges have broken barriers at their courts, including Ketanji Brown Jackson (the first Black woman Supreme Court justice), Arianna Freeman (the first woman of color on the Third Circuit), Brad Garcia (the first Latino on the D.C. Circuit), Beth Robinson (the first out lesbian on any circuit court), Micah Smith (the first Black federal judge in Hawaii), Judge Shanlyn A.S. Park (the first Native Hawaiian woman to ever serve as a lifetime judge), Jasmine Yoon (the first person of color to be a federal judge in the Western District of Virginia), Amanda Brailsford (the first woman federal judge in Idaho), and many, many others.

What about the future?

The Senate has about 30 pending nominees, many of whom will bring even more diversity to the bench. That includes:

  • Nancy Maldonado (who would be the first Hispanic judge on the Seventh Circuit);
  • Adeel Mangi (who would be the nation’s first Muslim American circuit court judge);
  • Mustafa Kasubhai (who would be the first Muslim American judge in Oregon);
  • Meredith Vacca (who would be the first person of color federal judge in the Western District of New York); and
  • Danna Jackson (who would be Montana’s first Native American federal judge).

Diversity is a vital component of making a fair and just judiciary. And that, in turn, is a vital component of protecting our freedom and important legacy of Brown.

Tags:

Biden judges, Brown v. Board of Education, judicial nominations, Lower Federal Courts