August 11, 2022


Let'S Talk Law

Racial Diversity in the Judiciary

The U.S. judicial system has historically been dominated by a virtually all-White judiciary. Having judges who represent the diversity of the nation is important for justice—and has still largely not been achieved.

The first person of color to serve as a federal judge was Black attorney and former Governor of the Virgin Islands William H. Hastie, who was appointed to serve on the U.S. Court of Appeals for the Third Circuit by President Truman in 1949. He served until 1971 and was named chief justice of the court of appeals in 1968.

Today, more members of minority groups serve as judges, but they are still vastly outnumbered. Minority group members make up just 20{48802e074c5f965745cb161aba42404553935aa8d7cf9aecda1745fcd7825477} of federal judges, the jurists who comprise the district, circuit, and Supreme Court of the U.S. There is even less diversity in the state judiciary system.

This assessment starts with examining the history of the U.S. legal and judiciary system, what the situation is today, and where the nation can go from here.

Key Takeaways

  • Today, members of minority groups make up 20{48802e074c5f965745cb161aba42404553935aa8d7cf9aecda1745fcd7825477} of federal judges in the U.S. and even fewer judges at the state level.
  • At the highest level of the judiciary, the Supreme Court, only three of the 114 justices in U.S. history have been people of color.
  • Even when slavery ended, continued legal barriers and pervasive race discrimination delayed progression of non-White Americans into the judiciary until the 20th century.

A History of Racism

When Macon Bolling Allen tried to become a lawyer in the U.S. in 1844, he faced many difficulties. Even though the only requirement for that position in Maine at the time was to have good character, he was denied because, as a Black person, he was not considered a citizen. To overcome this barrier, he passed the bar and did become a lawyer, but was not able to find work because few people were willing to hire a Black attorney. Many historians believe Allen moved to Maine to pursue a legal career because it was an anti-slavery state.

During the Reconstruction era, which began in 1865 after the Civil War ended, attempts were made to rectify the injustice of slavery, but changes didn’t come to the judiciary for a number of years. Several barriers had to be removed first. While the 13th Amendment abolished slavery in 1865, it wasn’t until the 14th Amendment in 1868 that Black and other non-White people born in the U.S. were considered citizens. And it wasn’t until the 15th Amendment in 1870 that non-White male citizens were legally given the right to vote.

By then, laws were in place setting barriers to keep non-White men from voting. (Women did not gain the right to vote until the 19th Amendment was ratified in 1920.) That struggle continues to this day, as the debate over H.R. 1, the voting rights act currently in the House of Representatives, demonstrates.

First Inroads: The Legal Profession

Judges generally start out by becoming lawyers. The legal profession was where members of minority groups made their first inroads into the U.S. legal system.

In 1869, George Lewis Ruffin became the first Black American to earn a law degree in the U.S. He graduated from Harvard Law School. Ruffin later served on the Boston city council, was elected to the Massachusetts legislature, and became a municipal judge in Charlestown, Mass., in 1883.

As members of minority groups began to go to law school, they faced severe racism and other roadblocks. In 1872, Charlotte E. Ray became the first woman of color to be a lawyer in the U.S. She graduated from Howard University, a historically Black college. However, racial prejudice made it impossible for her to sustain her practice, and she eventually became a teacher.

In 1886, Hong Yen Chang, a Chinese American, was the first Asian American to become a lawyer in the United States. He graduated from Columbia Law School in New York. The Chinese Exclusion Act, a law prohibiting immigration of all Chinese laborers, initially prevented him from being admitted to the bar, but the New York State Legislature passed a law allowing him to be admitted. When Chang moved to California to practice law, he was denied the right to practice in California. His case eventually went to the California Supreme Court, where he was still denied the right to practice law in that state.

Albert Gallatin McIntosh is believed to the first Native American lawyer in the U.S., admitted to practice in 1899 after studying law under E.W. Turner, of Carthage, Okla.. He was a member of the Creek People, or Muscogee, a group of indigenous peoples of the Southeast Woodlands. McIntosh served as superintendent of schools in connection with his legal practice, and was also a member of the Sequoyah Constitutional Convention, a Native American-led attempt to secure state territory for Native Americans. It was rejected by the government, despite winning the popular vote.

The first Latinx attorney to argue a case before the Supreme Court was Gustavo Garcia in 1954. He won Hernandez v. Texas, a case that extended constitutional rights to Mexican Americans.

Moving Into the Judiciary

The judicial branch of the federal government, as separate from state courts, was established by the Judiciary Act of 1789, one of the first acts of the U.S. Congress. It was signed into law by President George Washington.

It took 160 years, until 1949, for a person of color, William H. Hastie, to be appointed to serve as a judge at the federal level. It took even longer for the first non-Black jurists of color to be appointed to the federal bench:

  • In 1961, Reynaldo Guerra Garza became the first Latinx federal judge. He was appointed by President Kennedy and served on the district court in the Southern District of Texas, and later served as the chief judge of the court.
  • Herbert Choy became the first Asian American federal judge when he was appointed by President Nixon in 1971. He was a circuit court judge in the Ninth Circuit.
  • Billy Michael Burrage was the first Native American judge. He was appointed to the district courts by President Clinton in 1994.

At the federal level, all judges are appointed by the president of the United States and confirmed by the U.S. Senate. The judicial race barrier was breached much earlier at the state level, where some judges are appointed and many are elected, depending on each state’s rules. The stories of two of these early jurists vividly show the barriers they faced.

According to the political encyclopedia BallotPedia, 1870 was the year that the first African American became a justice of a state court. That’s when Jonathan Jasper Wright, the first Black attorney in Pennsylvania—who had moved to South Carolina and become involved in Republican politics—was appointed to the South Carolina Supreme Court. He served until 1877, when he resigned after the post-Reconstruction legislature, controlled by Democrats, tried to impeach him claiming corruption.

James Dean, a Black attorney in Florida, is believed to be the first elected judge of color. He was elected at the county (not state) level in 1888. Dean was suspended from his position less than eight months later by the governor of Florida for breaking the laws against miscegenation for issuing a marriage license to a couple of Cuban descent, who allegedly were of two different races. In 2006, Florida Gov. Jeb Bush reinstated his judgeship through a proclamation.

Lawyers Today: How Diverse?

A recent Bureau of Labor Statistics report shows low racial diversity among lawyers today. Of the total number of lawyers in the country, 6.8{48802e074c5f965745cb161aba42404553935aa8d7cf9aecda1745fcd7825477} are Black, 5.2{48802e074c5f965745cb161aba42404553935aa8d7cf9aecda1745fcd7825477} are Asian, and 5.8{48802e074c5f965745cb161aba42404553935aa8d7cf9aecda1745fcd7825477} are Latinx.

This job report did not include information on Native American lawyers. A separate study reported by the American Bar Association stated that there are 2,640 Native American attorneys in the U.S., meaning that they make up just 0.2{48802e074c5f965745cb161aba42404553935aa8d7cf9aecda1745fcd7825477} of American lawyers.

Federal Court Judges: Racial Diversity Today

The federal court system of the United States is made up of three main levels: district courts (the general trial courts), circuit courts (the court of appeals), and the Supreme Court (the highest court level in the judicial system).

Currently, 275 of the 1388 sitting federal judges identify as a member of a racial minority group. This group amounts to 20{48802e074c5f965745cb161aba42404553935aa8d7cf9aecda1745fcd7825477} of the sitting judges in the federal judiciary; 80{48802e074c5f965745cb161aba42404553935aa8d7cf9aecda1745fcd7825477} are White.

Here’s a breakdown of how racial diversity plays out at all levels of the federal system.

District Courts

The district court system is where the general trial courts occur. All federal court cases begin in the district courts, including civil and criminal cases.

There are 94 district courts across the country. White jurists make up 72.4{48802e074c5f965745cb161aba42404553935aa8d7cf9aecda1745fcd7825477} of the total judges at the district court level, and jurists from other population groups make up 27.53{48802e074c5f965745cb161aba42404553935aa8d7cf9aecda1745fcd7825477}, a little more than a fourth of the total.

Circuit Courts

The circuit court system is the appellate court system, or the court of appeals. Once a ruling is made in a district court, the case can be appealed to the circuit court. It is a higher level of court where the decision of the district court can be reviewed and potentially changed.

There are 13 circuit courts in the United States. They are organized into 12 circuits covering different regions of the country. These circuit courts hear the appealed cases of the district courts. The 13th circuit is the Federal Circuit Court of Appeals, which has a nationwide jurisdiction over special subject matter.

Across these 13 circuit courts, White jurists make up 77.14{48802e074c5f965745cb161aba42404553935aa8d7cf9aecda1745fcd7825477} of the total at the circuit court level, more than three-quarters. Members of minority groups make up 22.87{48802e074c5f965745cb161aba42404553935aa8d7cf9aecda1745fcd7825477} of judges, less than a fourth. There are no Native American judges on the circuit courts.

Supreme Court

The Supreme Court of the United States is the highest level of the federal court system. Once a ruling is made in a circuit court, the case can be appealed to the Supreme Court, which has the final say on the matter.

Nine justices serve on the Supreme Court. Currently, seven of these justices are White, one is Black, and one is Latinx, meaning less than a third are people of color.

In 1967, Thurgood Marshall was the first Black jurist appointed to the Supreme Court, 178 years after the federal judicial system was established. The second Black justice, Clarence Thomas, who still sits on the Court, was appointed in 1991, after Marshall’s retirement. In 2009, Sonia Sotomayor became the first person of Latin descent appointed to the Supreme Court.

Of the 114 justices who have served on the Supreme Court, only these three have been people of color, a meager 0.03{48802e074c5f965745cb161aba42404553935aa8d7cf9aecda1745fcd7825477}.

State Court Judges: Racial Diversity Today

The charts below show the racial diversity at the three different levels in the state court system. The state court system varies state by state, but most states follow a structure similar to the federal system and have several levels, which include a general trial level, an appellate level, and a State Supreme Court level. Taken overall, there is even less diversity in the state system than at the federal level.

The data shows that White jurists make up more than 80{48802e074c5f965745cb161aba42404553935aa8d7cf9aecda1745fcd7825477} of state court judges at all levels of the system. At the highest levels of the state courts, the State Supreme Courts, racial minority groups have an even lower level of representation than they do at the two lower levels, making up only 15.5{48802e074c5f965745cb161aba42404553935aa8d7cf9aecda1745fcd7825477} of judges.

Judges of the Future

Although minority groups have made progress in the federal and state judiciary, there is still work to do to make sure the judiciary represents the diverse population of the United States.

Attending law school and becoming a lawyer is not the only way to become a judge on the federal judiciary, but it is where many future judges get their start. Admitting more members of minority groups to law school can help open paths to a more diverse and representative judiciary.

Federal judges are appointed for life; the courts and districts that they reside over can be heavily influenced by the appointed judges. The position these judges hold and the authority they have is a vital part of the American government. Appointing and electing members of minority groups to these positions is the most obvious and direct way to diversify the judiciary.

With minority group jurists representing less than a quarter of the members of the judiciary, racial diversity must keep progressing to ensure inclusivity and fairness for all the people the courts serve.