Last year, a Harvard University study found that black federal district judges are significantly more likely to be overruled than their white counterparts, and that such an increased likelihood cannot be explained away by factors such as qualification disparities or types of cases.
The data-heavy study has so far remained under the radar – but with the announcement of Barack Obama nominating Merrick Garland to the supreme court, the findings are newly significant. The nomination and its process force us to contend with the plausibility of a justice system tainted with human subjectivity.
During a news conference yesterday in the White House’s Rose Garden, although Obama highlighted Garland’s “life experience” as helping him understand the impact laws can have on people, Garland was first and foremost presented as a legal scholar able to meticulously apply the law in an unbiased way. In his own accepting remarks, the judge stated: “People must be confident that a judge’s decisions are determined by the law and only the law.”
Academic studies show us that the idea of an impartial justice system is less simple. This study goes one step further: it does not just highlight the subjectivity of judges’ decisions, it also points to the seeming existence of racism within the justice system.
According to the study, which was authored by Harvard political science professor Maya Sen, “implicit bias” appears to be at least partly responsible for the difference in overturning rates. The possibility that black judges are more likely to be liberal, or perceived as more liberal, is also positively entertained as part of the disparity explanation. In her paper, Sen blankly, if a little cynically, refers to the increased likelihood of reversal for rulings written by black judges as the “black judge effect”.
The paper, entitled Is Justice Really Blind? Race and Reversals in US Courts, states that “cases decided by African American lower court judges are up to 10 percentage points more likely to be overturned than are cases written by similar white judges”.
In real terms, this means that between 2000 and 2012, a black federal district judge will have statistically had around 20 extra rulings overturned than if they had been white. The average number of cases authored by black judges and reversed over that period is 196.
The differences in overturning rates were “very stark”, Sen told the Guardian, adding that the findings match what studies have shown are the effects of implicit biases across a wealth of settings – from academia and public health to housing and the halls of Congress.
But in the case of the justice system, such findings are perhaps uniquely problematic.
“This means how your case is decided not only depends on what your case is about but also who your judge is. And how it proceeds through the legal system and how it is appealed up actually depends on these things as well,” Sen says.
In other words, the race of the judge who hears your case will affect the degree of validity it is bestowed within the judicial system.
In academia, “implicit bias”, or implicit racial bias as it is here, refers to subtle forms of possibly unintentional prejudice affecting judgment and social behavior. In this case, implicit bias appears to be held against black federal judges, and carried by their mostly white colleagues at the federal appellate level.
Federal district judgeships are prestigious positions to hold. They are political appointments that come straight from the president and must be approved by the Senate. There are 678 federal district judgeships available at any one time, with a tenth of those positions open for political and Senate-blocking reasons. There are currently 85 African American judges actively serving on the federal district court bench.
Appointments done under liberal presidents tend to include more minorities and women, while nominations during conservative presidencies have been overwhelmingly dominated by white men.
Rulings by these “lower courts” deemed suitable for review and potential reversal are sent to appellate courts, or “higher courts”, where judges generally sit in committees of three and generally know the identity of the federal judge whose ruling they are reviewing, the study points out.
There is only one level above the federal appellate court, which is the US supreme court.
‘Their work is not as valued’
Paul Butler, a law professor at Georgetown University, says the study’s findings come as no surprise: he has witnessed these kinds of biases in federal courts firsthand.
In the 1980s, Butler clerked for Mary Johnson Lowe, a black federal district judge in the southern district of New York, he explains. He distinctly recalls her cases, as well as those of other black colleagues, seeming to be picked significantly more often by the appellate court for review.
Butler also recalls acts of casual racism in court, when lawyers would for instance repeatedly call his judge “Constance Baker Motley”, the one other African American female judge sitting in the same district. The two judges looked nothing alike.
“My judge would say to the lawyer, Judge Motley and I are both African American and female, but we are both different people.
“For these lawyers, these two black judges were basically interchangeable. There was something about race and gender that almost overwhelmed these lawyers to look at my judge impartially,” he says.
That these kinds of inabilities to overcome racial prejudice have survived on many levels only confirms what we know more generally, based on other kinds of evidence and experiences of people of color, Butler says, that “their work is not as valued and does not receive as much credit”.
“I think now we get too hung up on the implicit part of bias – it may be explicit,” he ventures.
Striving for more diversity in the judiciary
As it stands, the judicial system is still overwhelmingly and disproportionately white and male.
“Neither in the federal system nor in the state system do we have a judiciary that is representative of the population as a whole, according to gender, race or ethnicity,” says Kate Berry, a staff attorney with the Brennan Center for Justice.
And yet achieving greater diversity in the judiciary continues to be an important battle for a number of reasons cited by advocates and academics alike, she says.
Most oft-cited reasons are that a diverse bench promotes public confidence, it creates better and richer decision making, assures that different perspectives are included, establishes role models and contradicts prejudices.
Studies have up until now concentrated on the diversity in legal opinions issued by judges that or not white or male. Recent studies, for instance, have suggested that black judges are more likely to vote in favor of affirmative action policies or to uphold civil rights.
This difference in decision-making only makes the consequences of Sen’s study more important: Sen finds that black-authored overturned cases are not clustered into racially salient areas such as civil rights. Higher overturning rates for black judges occur across all subject areas, and rates do not at all differ between civil rights and non-civil rights cases.
Sen also preemptively silences critics who may hang on to beliefs that black judges hold appointments thanks to diversity drives, not competence levels. She includes levels of qualifications in her analysis, comparing black and white judges with similar education backgrounds and American Bar Association rankings, among other factors; and she still finds, through her numbers, that the difference – this “black judge effect” – remains.
The ramifications of this are very real: the question, beyond representation, becomes: to what extent are these voices being upheld and valued, rather than disproportionately muted or sidelined?
Where it can be addressed
That these types of biases have survived the test of time is disheartening but predictable, Butler says.
“It shows that like in so many other areas we are being judged, based not on the quality of our work, not the content of our character, but on the color of our skin.”
“These are African Americans who are doing everything right. These are people who have overcome a lot of adversity,” Butler says poignantly of black federal district judges.
Butler ponders it is a reflection of a democracy in a post-Obama era that is still being confronted with tangible manifestations of active and institutional racism.
There is a place where this can be meaningfully addressed though: at the very top, where reversals are no longer applicable.
“The experiences that the [supreme court] justices have had, both in their personal and their professional lives, has an impact on the cases that come before them. Right now we do not have a supreme court that represents the demographic diversity of this country,” Berry says.
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