The California Supreme Court, 2019-2020: Continuing Evolution of a Diverse Court

By Kirk Jenkins

Kirk C. Jenkins is Senior Counsel at Arnold & Porter Kaye Scholer LLP in San Francisco, and is the President of the California Academy of Appellate Lawyers.

America has always rested upon the proposition that "all [persons] are created equal." Judicial analytics have a crucial role to play in redeeming that promise by showing the degree to which extra-legal factors such as judges’ personal values, ideology, life experiences, race, and gender impact decision making — a study which has never been more important than now, with the fight for racial and gender equality dominating the news this year.

Academic analysts have studied those issues for nearly a century. In 1922, Charles Grove Haines published a study of over 15,000 public intoxication cases from the New York magistrate courts. He demonstrated that one judge discharged only one of 566 cases, another 18 percent of his cases, and still another 54 percent of his cases — all for precisely the same offense. Robert Erickson showed in a major study that female judges are substantially more likely to vote to find liability in a gender discrimination case than male judges — but that the difference disappears for male judges sitting with at least one female panel member. Another study by Christina Boyd, Lee Epstein, and Andrew Martin reviewed thousands of decisions and came to the same conclusion. Jennifer Peresie has shown that gender of the judge and for men, sitting with at least one woman, is a more significant predictor of votes for the plaintiff in discrimination and harassment cases than whether the judge was a Democratic appointee. Many studies have concluded that members of racial and ethnic minorities are on average sentenced more harshly, holding constant for legal sentencing factors, than White defendants. Other studies have demonstrated racial disparities in the seriousness of charges, the number of companion charges, and bail and bond decisions.