Representing What: Gender, Race, Class, and the Struggle for the Identity and Legitimacy of Courts

Abstract

This symposium addresses the relationship of diversity and pluralism to the judiciary. The phrase “Equal Treatment Under Law” was carved in the stone above the steps of the U.S. Supreme Court building, which opened in 1935. At the time, many schools were segregated by race, dozens of laws barred women from full participation in economic and political life, and discrimination based on gender identity was commonplace. The justices who sat on the Court and almost all the lawyers who argued before them were white. Today, the Supreme Court’s stone inscription has become its motto. That phrase is read as if it always referenced an understanding of equality that has become central to the identity and the legitimacy of courts. Reducing the descriptive discrimination of prior eras, the judiciary now “looks” different than it did, and in that sense has come to be more “representative” by its partial reflection of the range of people appearing in courts. Given judiciaries’ history of supporting legal discrimination, the sense that courts ought to belong to everyone is a major achievement. But to assess the impact of that shift requires analysis of three other major alterations in U.S. courts — the influx of a host of litigants newly entitled to pursue legal claims, the limited resources of many claimants, and the development of judiciaries’ institutional agenda, including supporting shifts away from public adjudication to more private forms of dispute resolution. Research about diversification of judges has yet to look at the interaction among these changes. Much of the research has sought to tease out whether judges’ decisions in cases have changed in the wake of the entry of women judges. However, the “difference that difference makes” needs to be analyzed at institutional levels as well as by aggregating the decision-making of individuals. During the last century, judiciaries developed structural capacities to speak about the “administration of justice.” They gave meaning to this phrase through setting their own priorities, proposing new rules and legislation, developing education programs, and commissioning research and task forces on specific topics. Moreover, judiciaries honed their skills at lobbying for resources. As I detail, the entry of women and men of color into the legal profession affected these agendas. The affinity organizations they founded pressed courts to inquire into their own history and practices of bias and to respond through revising rules of ethics, doctrine, and practice. Furthermore, a focus on a newly and partially diversified judiciary needs to be coupled with attending to other participants — disputants, lawyers, and the processes that courts use. That fuller picture makes plain that because so many people in courts have limited means, the aspiration that disputants have participatory participation remains illusive. The “justice gap” has become a shorthand for the point that courts and the social order in which they sit have yet to take steps sufficient to help under-resourced litigants. Worse yet, in some jurisdictions, courts have served as “revenue centers,” using court-imposed fines and fees as sources of income. Failure to pay “legal financial obligations” can result in suspension of driver’s licenses, the loss of voting rights, and other sanctions, levied disproportionately on people who are poor and of color. Instead of being seen as fonts of fairness, courts are coming to be identified as sites of inequality. In addition, many courts have embraced alternative forms of dispute resolution that make both processes and outcomes less visible to the public, which has a place as of right in courts. Through doctrine and rules, U.S. courts have shifted their own practices and mandated enforcement of clauses imposed on consumers and employers that push them out of court and out of class or joint actions. In sum, the new faces on the bench ought not obscure that the project of representation, inclusion, and equality is far from complete. The vivid inequalities in courts are problems for courts because such disparities undermine their ability to be places of justice.