On October 2, 1967, Thurgood Marshall took his seat on the Supreme Court of the United States. Marshall was the first African-American to sit on the Court. In the fifty years since his appointment, we must ask: Do Black judges matter? In the Trump Era, they most certainly do.
In our federal system, it is the role of the judicial branch to make sure that the other branches are complying with the Constitution. While this may sound simple, it is not always easy because some parts of the Constitution are quite vague. Therefore, it is the job of the Supreme Court and other federal courts to tell us what those vague provisions mean.
For instance, the Fourteenth Amendment says, “No state … shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Thus, the Constitution clearly states that all Americans are entitled to “equal protection.” This part of the Constitution is frequently used to challenge racial discrimination.
However, what does “equal protection” mean? In 1896, the Supreme Court decided Plessy v. Ferguson. The Court held that the requirement of equal protection could be met by using “separate but equal” facilities for the races. Thus, the Supreme Court said that segregation was constitutionally permitted, opening the door for the many Jim Crow laws that followed. Clearly then, the way in which the Constitution is interpreted matters for people of color.
Supreme Court decisions are important because once the Supreme Court decides a case, its decision is final. Of course, the Court can reverse its prior decisions and has done so on occasion. However, under judicial doctrine, it is exceedingly rare for any court — especially the Supreme Court — to reverse itself. Even when it happens, it takes considerable time and effort. Nearly sixty years passed between Plessy v. Ferguson, which upheld segregation, and Brown v. Board of Education, which ended it.
While Thurgood Marshall was not the first African-American to serve in the federal judiciary (that honor goes to the Honorable William H. Hastie, who had a remarkable career of his own) Marshall’s appointment did signal the arrival of a new wave of non-white jurists.
According to research done by the Just the Beginning Foundation, an organization dedicated to increasing diversity in the courts, and the Minority Corporate Counsel Association (MCCA), as of July 31, 2017, there were 1,308 federal judges. Of these, 266, or roughly twenty percent are non-white. There were 143 African-Americans, 92 Latinos, 29 Asian-Americans, and two Native Americans.
Of course, these people did not become judges overnight. In order to serve as a federal judge, a person must be nominated by the president and approved by the Senate. The graphic below, taken from a chart designed by the MCCA, demonstrates that non-white judges — particularly African-American judges — are more likely to be appointed by Democratic presidents. Altogether, the Republican presidents listed below appointed a total of 44 African-Americans to the bench over twenty combined years of service. By comparison, President Barack Obama appointed 61 African-Americans during his eight-year term. Indeed, while it took Ronald Reagan eight years to appoint seven African-American judges, Jimmy Carter managed to appoint five times that number in half the time. Thus, Democratic presidents are a key component in increasing judicial diversity.
Moreover, although some states elect judges for finite terms, federal judges serve for life. Thus, although George H.W. Bush has not been president since 1993, some of the judges he appointed continue to serve. The same would be true for any judges appointed by Trump during his term.
Although justice is often depicted as blind, judges are real people with real-life experiences. Prior to her confirmation, Justice Sonya Sotomayor stated that her experience as “a wise Latina” gave her an insight that made her a better judge. Conservatives criticized her at the time, but research shows that Justice Sotomayor was correct: having a case heard by a judge that can empathize with a non-white plaintiff makes a difference.
In a 2009 study, Professor Pat Chew of the University of Pittsburgh School of Law and Dr. Robert Kelley of Carnegie Mellon University studied whether the presence of a Black judge made a difference in employment discrimination cases where the plaintiff made claims of racial harassment or discrimination. They found that plaintiffs were nearly three times more likely to prevail when a Black judge heard the case. They stated, “[W]hile we cannot predict how any individual judge might act, our study results strongly suggest that African American judges as a group and White judges as a group perceive racial harassment differently.”
Dr. Jonathan Kastellec, professor of Political Science at Princeton University, conducted a study about judicial diversity. The study examined whether the presence of a Black judge had any influence on an appellate panel’s decision in death penalty cases. He found that when the defendant seeking appeal was Black, including even one Black judge on the panel made it 24 percent more likely that the defendant would prevail.
These findings do not mean that judges of color throw the law, caution, or logic out of the window. Professor Chew and Dr. Kelley were quite clear about this. They stated, “We found that the race of judges matters, as does their political affiliation. On the other hand, our findings also indicate that judges of all races are attentive to the merits of the case.”
Race seems to influence Black judges even when they may be more conservative. A study by professors from Penn, Harvard, and Chicago studied the impact of race on the decisions of federal district judges. The researchers found that white male judges appointed by Democrats were 33 percent more likely to vote in favor of defendants. For non-white males appointed by Democrats, the number was nearly identical, 32 percent. For Reppublican-appointed male judges, white judges were 18 percent more likely to vote for defendants, while non-white judges were 24 percent more likely. Thus, while Democratic judges of either race are the best-case scenario for a defendant, Republican-leaning non-white judges are still more helpful to defendants than their white counterparts.
Although Trump has already filled a vacancy on the Supreme Court, the Black community must be vigilant about his lower-court appointments as well. Not all cases are appealed. Moreover, not all cases are accepted by the Supreme Court. In either instance, the lower court’s decision stands. As such, lower court appointments are just as significant as Supreme Court appointments — if not more so.
Federal judges decide many cases that impact African-American life: everything from affirmative action to voting rights can be heard by federal courts. Over the next four years, Trump will do his best to pack the courts with conservative white judges who will do their best to undo the progress Black people have made over the past 50 years. The Constitution only means what the courts say it means. These conservative jurists will arrive on the bench united in a belief that racism is a thing of the past. They will interpret the Constitution to reflect that belief.
If this reality is not sobering enough, consider the fact that any judges appointed by Trump judges will be on the court until they retire or die. This means that for the foreseeable future, Black plaintiffs before these judges will face extreme difficulties.
If the current Supreme Court makes any major decisions on race that are unfavorable to the rights of Black people, it will take years to undo the damage. At present, the average age of the four conservative justices is 62. The oldest, Justice Clarence Thomas, is 69 years old. By contrast, the average age of the four liberal justices and centrist Justice Anthony Kennedy, who votes with the liberal group on certain social issues, is 73. At 84, Justice Ruth Bader Ginsberg is the oldest jurist on the Court. With this wide age difference, it is likely that any current or future president will be replacing one of the five more liberal justices. The loss of any of these five would give the Court a solid conservative majority and a hard push to the right. Most troubling, given the relative youth of the conservatives and the fact that most judges serve well into their eighties, once the Court shifts right, it would take years — decades even — for the Court to shift in a more liberal direction.
Because judicial nominees are approved by a simple majority, there is little that the Democratic opposition in the Senate can do to stop Trump’s judicial juggernaut. Until new senators are chosen in the 2018 midterm elections or a new president in 2020, this reality will likely remain unchanged. However, one need not wait for an election to act. Immediately, voters can begin educating themselves about the federal courts, judicial nominees, and the nomination process. Where nominees are wholly unacceptable, citizens can reach out to their Congressional representatives or speak out publicly. Judicial nominations have been withdrawn after public outcry in the past.
The judicial branch is arguably the most important part of our system of government. They are the referees, so to speak. They are there to ensure that the Congress and the president abide by the rules established for the governing of this nation. It is up to the Black community to elect politicians that will appoint and approve judges that believe in the type of justice that will benefit Black communities. If this does not happen, African-Americans could soon be living in a nation where those that claim to protect justice and fairness are actually those doing their best to undermine it, the progress that Thurgood Marshall and so many others worked so hard to achieve will be lost for the next generation.