By Charles David Henry
Racial disparities appear to persist in the American legal system, despite the attempts to make the judiciary more reflective of the general population, a Harvard study reports.
The 2015 study examined how higher-court judges evaluated opinions written by approximately 1,500 federal district minority judges between 2000 and 2012.
The study shows that if Black judges’ cases were reversed at Whites’ comparably lower reversal rates, some 2,800 cases authored by Black judges would have been upheld on appeal over the last 12 years.
Author of the study was Maya Sen, assistant professor at the John F. Kennedy School of Government, Harvard University.
Sen’s study shows that Black judges vote differently than White judges on various issues. Because most appellate panels are composed of judges who are all White, losing litigants in such cases have some incentive to appeal and secure a reversal, her study shows.
That being the case, it would not be surprising that Black lower-court judges have cases appealed at higher rates and then are also more likely to have those cases reversed — particularly if reviewed by White appeals judges without the same political or legal inclinations.
“Black lower-court judges are more likely than White judges to be awarded lower qualification ratings by the ABA…”
A second possibility is that practicing attorneys are known to have lower opinions of minority judges. These attorneys view Black judges’ opinions with more skepticism and may be more inclined to appeal.
In Sen’s study, court opinions written by Blacks, particularly those on civil rights issues, will more likely be appealed than those written by White judges. In her assessment, such a difference may suggest that discrepancies in reversal rates stem more from the nature of cases appealed than any bias on the part of appeals panels.
According to Sen’s study, “There are two further explanations, both of which raise troubling normative implications under the assumption that reversal is costly. The first is that Black judges could possibly bring with them different qualifications and professional experiences that result in decisions that are more likely to be overturned.
“Black lower-court judges are more likely than White judges to be awarded lower qualification ratings by the ABA; in addition, a lively scholarly debate has addressed the relative successes of Black versus White graduates of elite law schools.”
Her study found that “educational opportunities and professional experiences translated into some Black judges arriving to the bench with qualitatively different experiences than White judges.”