#AppealsCourtsSoWhite
So Very, Very White
The U.S. 11th Circuit Court of Appeals has just ordered the Atlanta-based venture capital Fearless Fund to pause its grant applications designed for Black women founders. This halt is the result of a lawsuit filed by the American Alliance for Equal Rights, which alleges racial discrimination due to the grant’s specific demographic focus. Though initially supported by U.S. District Court Judge Thomas Thrash Jr. as protected free speech, an emergency motion led the Appeals Court to overturn this decision, tagging the grant “racially exclusionary.” This legal predicament echoes the wider, ongoing national debates about affirmative action.
While this ruling stirs indignation, it’s hardly shocking given the demographics within appeals courts, where white men predominantly preside, raising questions about the potential for antiracist rulings.
Data on the Judicial Landscape
The Federal Judicial Center (FJC) offers comprehensive historical data on federal judges, including those serving on appeals courts. Currently, there are 179 designated appellate seats, with 172 filled and 7 vacant. Additionally, there are 127 senior status judges who, despite their semi-retirement, still participate in hearing cases. This elevates the total count to 299 active judges.
FJC’s data includes each judge’s race and gender, the appointing president, that president’s political party, the judge’s educational background, and more, offering a detailed overview of the judiciary’s composition.
Appeals Court Demographics
The 299 appeals court judges are, collectively, 77% white, 10% Black, 7% Hispanic, and 6% Asian. By gender, 68% are men, and 32% are women. In an intersectional light, Asian women and men represent 2.3% and 3.7%, Black women and men comprise 5.4% and 5.0%, Hispanic women and men are 2.0% and 4.7%, and white women and men stand at 22.7% and 54.2% respectively. Non-Hispanic white men, while constituting 31% of the U.S. populace, are significantly overrepresented at 54% in the appellate courts. White people overall constitute about 60% of the U.S. populace but about 77% of appeals court judges.
Demographics of the Eleventh Circuit
In this circuit, there are 21 judges: one Black woman, one Black man, one Hispanic woman, one Hispanic man, seven white women, and ten white men. Overall, the circuit is 81% non-Hispanic white, compared to the 60% of the U.S. populace that is non-Hispanic white.
Panels in the Eleventh Circuit
Federal appeals are typically decided by a panel of three judges rather than a single judge. This practice is a fundamental aspect of the U.S. appellate system, designed to ensure that multiple perspectives are considered in the review of lower court decisions. In this process, three judges from the appellate court review the case record, listen to arguments from both parties, and then deliberate on the legal issues presented. The panel’s majority opinion determines the outcome of the appeal. A panel is meant to be selected randomly, so let’s consider what the racial demographics of a randomly selected panel might look like in this circuit.
In the 11th Circuit, which includes 21 judges, there are 1,330 possible panel combinations. Breaking it down, 544 panels could have two white judges, and 680 panels could be all white, amounting to 1,224 majority-white panels. Thus, a randomly selected panel has a 1224/1330 = 92% probability of being majority white.
The panel for the Fearless Funds case was one of the 544 possible panels with two white judges. The majority opinion judges were Robert Luck and Andrew Brasher, two white men appointed by Trump. The minority opinion judge was Charles Wilson, a Black man appointed by Clinton.
The Case Was Doomed
I don’t claim white judges automatically make legal decisions that hurt racially minoritized people, nor that racially minoritized judges should automatically make legal decisions that help them. Such claims would be reductionist. That said, one can adopt an antiracist viewpoint on the law, or not. If you asked me “on the whole, do you predict that white judges will adopt antiracist stances towards legal interpretation” the answer is a resounding no. I would say that Fearless Fund’s unfortunate fate was sealed the moment the case was appealed.
Hope?
The Fearless Fund case highlights the critical need for increased diversity within the judiciary. Judges from varied backgrounds bring unique perspectives, enriching the legal process. Such diversity is not a luxury but a necessity for ensuring justice and maintaining public trust. Despite the current predominance of white judges, steps towards a more inclusive judiciary are possible. It’s incumbent upon us, the citizenry, to leverage our political voices and advocate for a judiciary that mirrors the rich diversity of our nation.
Your neighbor,
Chad
