Justice Jackson Offers Common Sense Argument For How Judicial Diversity Benefits Everyone

In the backlash against DEI, someone has to champion a legal defense that will prevent us from spiraling toward a monoculture. Who better than than one of the justices that oversaw the arguments against affirmative action? Justice Jackson is no stranger to diversity — she got a lot of attention for her historically informed reading of the 14th amendment. But she’s also very attentive to something else: the country’s demographics. Bloomberg Law was able to capture some of her thoughts on diversity’s place in the rule of law and the general public’s confidence in it:

“To the extent that the law is governing behavior, and it is of the citizenry at large, it instills confidence in the rule of law when the people who are governed by it understand that the judiciary and the people who are interpreting it come from different walks of life…things that we can do to instill public confidence, are very important. Having a variety of people engaged in the activity of being judges is something that instills confidence.”

If you’ve read SFFA v. Harvard, the confidence argument should ring familiar. The case is largely known for striking down affirmative action in higher ed, but the decision carved out an exception for military academies to continue with the practice. The Court reasoned that the government may have in interest in having people in positions of authority that represent the demographics of the troops that they lead. And while the decision was largely limited to that example, it isn’t hard to imagine times when diversity (or a lack thereof) is glaringly obvious and could be a reason for public distrust. Just think about the hesitancy many people felt upon realizing that the lawyers defending Ahmaud Arbery’s killers were really pushing for an all white jury or how worried people have been about flying since “gutting DEI” was quickly followed with planes kissing the ground prematurely:

There’s no guarantee that a diverse judiciary will prevent the evils of racism from being played out in court rooms, but I do wonder if there have there been any Black or Latino judges whose allergy medicines caused them to blurt out slurs. Better yet, would the story of the judge who handed out criminal records to hundreds of black boys over a made up crime played out differently if the judge were a Black woman instead of a White one? The truth is that communities care who wields the gavel, and we may be better off if and when the one calling order to the court is a member of a minority group.

As it stands, DEI appears to be on the way out. But it need not be — properly tailored arguments that focus on foundational notions for democracies like legitimacy may push the discourse in a direction that is constitutionally justified. Probably not. But it’s worth a shot.

Jackson Defends Court Diversity as Boost to ‘Public Confidence’ [Bloomberg Law]

Earlier: 15 of The 16 Potential Jurors In The Ahmaud Arbery Trial Are White. Problem?

Judge Jails Children For Just Standing There… Menacingly

On This Week’s Episode Of Judicial Misconduct: Percocet Slurs?

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who is learning to swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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