The Problem With Having All-White State Supreme Courts

The Alabama NAACP argues that election by majority rule disenfranchises minority voters.
Seated, from left: Justice Tom Parker, Justice Lyn Stuart, Chief Justice Roy S. Moore, Justice Michael F. Bolin, and Justice Glenn Murdock. Standing, from left: Justice Alisa Kelli Wise, Justice James Allen Main, Justice Greg Shaw, and Justice Tommy Bryan. (Photo: Courtesy Alabama Unified Judicial System 2015 Annual Report)
Sep 16, 2016· 4 MIN READ
Samantha Cowan is an associate editor for culture.

Judge John H. England Jr. has served the public of Alabama for more than 30 years. Born and raised in the Yellowhammer State, the 69-year-old was one of the first African Americans admitted to The University of Alabama School of Law. He went on to become one of just three black justices to sit on the state’s Supreme Court, serving from 1999 to 2001.

In a state known for its history of segregation and stark racial divides, England has encountered what most would call blatant bigotry coming from the bench. Yet to this day, he espouses an ethos of tolerance and a belief that racism stems from ignorance rather than hate.

“One judge made a comment: ‘You know, there were many slaves who loved their master and had no problem with slavery,’ ” England told TakePart of one of his colleagues on the Sixth Judicial Circuit of Alabama. “He didn’t mean to offend. He thought that [was true].”

Rather than write off the judge, England had a conversation with him. Throughout his career, England said, he has offered his personal experiences to help fellow jurists challenge generalizations they may make based on their upbringing.

“My being on the court with the other circuit judges has given them a broader perspective, as well as they’ve given me a broader perspective,” England said. “It goes both ways.”

Many Alabamians are concerned that perspectives like England’s are not represented—and that minorities in the state are suffering as a result. For the past 15 years, all of the justices on the Alabama Supreme Court have been white. All 19 jurists on the states’ three appellate courts are white.

Last week, the Alabama State Conference of the NAACP and four citizens sued the state, alleging that its processes for choosing appellate judges are discriminatory because of outmoded election practices.

Alabama’s all-white courts are far from outliers—and its high courts are not even the worst for diversity. Nineteen states in the nation have never had an African American Supreme Court justice, including Delaware, Kansas, and Arizona. Currently, 31 states do not have a black justice serving on their court of last resort.

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The Alabama NAACP believes the state’s dearth of black judges stems from a broken judicial elections process that violates the Voting Rights Act of 1965.

To elect its civil and criminal appellate judges, as well as its Supreme Court Justices, Alabama conducts at-large elections, in which every eligible citizen can cast a ballot. Section 2 of the Voting Rights Act prohibits any electoral scheme that weakens citizens’ ability to vote because of race or color. At-large elections have long been criticized as unwinnable for minority voters seeking better representation and diversity in states where endemic racism means citizens vote for their own demographic.

The best process for diversifying the judiciary remains contested. The Center for American Progress notes that judicial elections tend to create barriers for minority judges. Judicial campaign costs have more than doubled since the 1990s, and candidates of color raise less money than white candidates. States that rely on gubernatorial appointment have found some success, but a 2005 report from the Lawyers’ Committee for Civil Rights Under Law found that this process was highly dependent on the head of state’s priorities.

Alabama's process has left residents frustrated.

“Our votes counted, but it’s very diluted, because no matter how many African Americans voted, we still would not be able to elect an African American judge,” Benard Simelton, president of the Alabama NAACP, told TakePart. “There’s just too many people who still vote along racial lines.”

The NAACP’s lawsuit connects the dearth of African American judges to Alabama’s disproportionately high incarceration rate of black Americans. Black Alabamians make up a quarter of the state population but represent 63 percent of state prisoners. What’s more, although less than 5 percent of all murders in Alabama involve black defendants and white victims, more than half of black death row inmates were sentenced for killing a white person, according to the Equal Justice Initiative.

“Voting remains racially polarized in the state of Alabama,” said Kristen Clarke, president and executive director of the group that filed the suit, the Lawyers’ Committee for Civil Rights Under Law. “This is the birthplace of the Voting Rights Act, and in so many respects, there are stark reminders of the fact that voting discrimination remains a part of the ongoing political reality across the state.”

In March of 1965, hundreds of African Americans attempted to march from Selma to Montgomery to demand federal voting protection. The march turned violent when police attacked peaceful protesters with tear gas and billy clubs. Less than six months later, President Lyndon Johnson signed the Voting Rights Act into law.

The lawsuit asks a federal court to divide Alabama into eight districts, with at least one district composed of a majority-black population. Each district would elect one member of the Supreme Court. The complaint names the state of Alabama and Secretary of State John Merrill as defendants. Attempts for comment from Merrill’s office before deadline were unsuccessful.

“Courts should reflect the racial diversity of the communities that they serve," Clarke said. “We believe that it is possible to create single-member districts that provide African American voters an equal and fair opportunity to elect judges of their choice."

Establishing a black-majority district proved successful in diversifying Louisiana’s Supreme Court. Judge Bernette Johnson is Louisiana’s first black chief justice and has served on the Supreme Court since 1994.

England earned his seat on Alabama’s Supreme Court through gubernatorial appointment because of a vacancy on the bench in 1999. He ran for full terms in statewide elections in 2000 and 2006 and lost each time to white candidates. The two other black justices to serve on Alabama’s Supreme Court, Judge Oscar Adams and Judge Ralph Cook, were also appointed by governors to fill vacancies. Both Adams and Cook were reelected in the general elections that followed their appointment and are the only two African Americans ever elected to a statewide office in Alabama’s history. Not a single black judge has served on either the Court of Civil Appeals or the Court of Criminal Appeals in that state.

Diversity on the bench matters. Supreme Court justices have a broad impact on the states they serve, whether in allocating educational funds or deciding which defendants land on death row.

“The more diverse the life experience, the greater chance you’ll have justice,” England said.

White judges are four times more likely than minority judges to dismiss race discrimination cases, according to a 2012 report. The study authors noted that judges of the same ethnicity or gender as the plaintiff were more likely to be more vigilant in cases of discrimination. Black defendants are also 30 percent more likely than white defendants to be sent to prison for committing the same crime, according to a study from Harvard University. The same report found that African American judges had slightly smaller racially based sentencing disparities than did white judges.

“When [black defendants] go through the appeals court, it’s basically a rubber stamp of what the lower court has said,” Simelton said. “We believe that if we can change [the voting] process, that will be one more step that we can take to help decrease the disproportionate number of African Americans that are incarcerated at this time.”

“We don’t expect Alabama to change overnight,” Simelton added. “All we’re asking for is a fair opportunity to elect our judges.”