The majority of state court systems are failing at adequately reflecting the diversity of the populations they serve, according to a new report authored by law professors Tracey E. George and Albert H. Yoon and released today by the American Constitution Society for Law and Policy (ACS). The report, titled The Gavel Gap: Who Sits in Judgment at State Courts?, presents original research that demonstrates the woeful lack of minority and female representation among state judges. The data set, collected for the first time in a comprehensive and systematic manner, compiles the race, ethnicity, and gender of 10,000 sitting judges on state courts of general jurisdiction, ranging from trial courts to state supreme courts.
Professors George and Yoon examined the biographical information of judges in 51 jurisdictions across the country, and compared the percentage of women and minorities on each state judicial bench to that of the state’s general population. The states were then graded based on how closely their benches reflected their populations, with states close to or at parity receiving an A, and states with a representation gap of 40% or more given an F. Highlights from the findings include:
- Forty-one (41) out of the 51 state judiciaries studied received either a D or F grade;
- White men are twice as represented on state judiciaries (approximately 58%) as in the general population (30%);
- Women are only 30% of state judges, yet they are 51% of the general population; and
- People of color make up just 20% of state judges, although they are 38% of the general population.
“The vast majority of Americans’ interactions with the judicial system, ranging from traffic violations to criminal proceedings, happen in state courts,” said Professor Tracey E. George of Vanderbilt University, one of the co-authors of the report. “When people do not see themselves represented in their community leadership, when the vast majority of judges cannot relate to the lived experience of those they serve—this is a problem. It creates a mistrust of judges, and propagates the mystery surrounding the court system. For the first time, we have the data we need to identify and address this serious problem.”
Read the full report at gavelgap.org.
The upward spiral of big money fundraising and aggressive politics in state judicial elections pressures judges to become partisan actors who favor their own party in deciding election disputes.Bush v. Gore is by far the most famous of this kind of election case, but state courts decide many similar cases every year, regularly determining who wields power at the state and local level. State judges are under enormous political pressure to join in party-based fundraising and campaign networks to survive what has become a fiercely competitive electoral environment. Analyzing a new dataset of cases from 2005 to 2014, this study finds that judicial decisions are systematically biased by these types of campaign finance and re-election influences to help their party’s candidates win office and favor their party’s interests in election disputes.
As election challenges have increased dramatically since Bush v. Gore, courts now are asked more than ever to resolve these highly charged partisan battles. Understanding how judges decide these election disputes is important in its own right — these increasingly common election cases regularly settle partisan fights over election rules and go a long way in deciding which party’s candidate wins office. Just as importantly, though, understanding election cases reveals deeper problems with judicial partisanship in today’s new era of judicial politics. The major parties and other powerful political actors now routinely spend millions of dollars in state court elections because state judges decide a full spectrum of cases ranging from environmental and consumer protections to criminal law to reproductive and voting rights. The increasing cost of elections escalates pressures on judges to rule in ways that help them to raise campaign funds from their partisan sponsors and protect their re-election interests.
The study finds that judicial partisanship is significantly responsive to political considerations that have grown more important in today’s judicial politics. Judicial partisanship in election cases increases, and elected judges become more likely to favor their own party, as party campaign-finance contributions increase. This influence of campaign money largely disappears for lame-duck judges without re-election to worry about.
This study is based on work by a team of independent researchers from Emory University School of Law that is forthcoming in Stanford Law Review. With support from the American Constitution Society, the researchers collected and coded data from over 500 election cases from all 50 states from 2005 to 2014. The data included over 2,500 votes from more than 400 judges in state supreme courts.
Read the full report at PartisanJustice.org.
In order to promote debate and understanding regarding the role state courts play in our system of democracy and the effects elections and other judicial selection systems can have on the administration of justice, the American Constitution Society is pleased to sponsor empirical research on these important topics. Skewed Justice and Justice at Risk look at how Citizens United and the proliferation of judicial campaign spending have changed the landscape of state courts.
The explosion in spending on television attack advertisements in state supreme court elections accelerated by the Citizens United decision has made courts less likely to rule in favor of defendants in criminal appeals. State supreme court justices, already the targets of sensationalist ads labeling them “soft on crime,” are under increasing pressure to allow electoral politics to influence their decisions, even when fundamental rights are at stake.
A new report, Skewed Justice: Citizens United, Television Advertising and State Supreme Court Justices’ Decisions in Criminal Cases by Dr. Joanna Shepherd and Dr. Michael S. Kang looks at the increase in television attack ads on state judicial decision-making. This study’s two principal findings:
The more TV ads aired during state supreme court judicial elections in a state, the less likely justices are to vote in favor of criminal defendants. As the number of airings increases, the marginal effect of an increase in TV ads grows. In a state with 10,000 ads, a doubling of airings is associated on average with an 8 percent increase in justices’ voting against a criminal defendant’s appeal.
Justices in states whose bans on corporate and union spending on elections were struck down by Citizens United were less likely to vote in favor of criminal defendants than they were before the decision. Citizens United changed campaign finance most significantly in 23 of the states where there were prohibitions on corporate and union electioneering prior to the decision. In these states, the removal of those prohibitions after Citizens United is associated with, on average, a 7 percent decrease in justices’ voting in favor of criminal defendants.
Read the full report at the Skewed Justice website.
Justice at Risk: An Empirical Analysis of Campaign Contributions and Judicial Decisions, by Joanna Shepherd, a law professor at Emory University, analyzes data from 2,345 business-related state supreme court published opinions from all 50 states in 2010-2012 and more than 175,000 contribution records, and reveals a growing relationship between money and how state supreme court justices rule in business-related matters.
ACS sponsored the study to discover whether more money being funneled into state supreme court elections is placing fair and impartial courts at risk.
The report focused on business contributions and their impact on state supreme court decisions because when direct and indirect contributions are taken into account, business interests dominate spending on judicial elections. Thus, while business interests and other groups contributed roughly equal amounts to candidates in state supreme court races from 2000-2009, business organizations dominated independent expenditures in those races, accounting for more than 90 percent of paid television advertising.
To learn more about this report—particularly the data that it draws from—visit the special reports and collaborations page of the National Institute for Money in State Politics. We strongly encourage interested parties to review the data, study the issue further, and contribute to and expand the important conversation about fair courts. NIMSP is the only nonpartisan, nonprofit organization revealing the influence of campaign money on state-level elections and public policy in all 50 states. The organization encourages transparency and promotes “independent investigation of state-level campaign contributions by journalists, academic researchers, public-interest groups, government agencies, policymakers, students and the public at large.”
- "Justice at Risk in a Nutshell" - a one-page summary with highlights
- "Justice at Risk" - 10 Questions & Answers
Map of State Court Judicial Selection Methods