By: Aisha C. Edwards and Sharone Mitchell
America’s courts face a mounting crisis of credibility. Public approval of the U.S. Supreme Court is at historic lows, while cynicism toward state courts grows. Americans, including Illinoisans, are losing faith in their judicial system, and it’s hard to blame them. State and federal lawmakers insist on politicizing our courts while corporate special interest groups continue to pump untraceable dark money into judicial elections across the country. With all this coming to a head, the Senate’s vote to confirm the nomination of Justice Ketanji Brown Jackson marked the first major step in a long path to restoring the Court’s credibility.
Judge Ketanji Brown Jackson’s place on the Supreme Court is historic. Brown Jackson is the first-ever Black woman Supreme Court Justice in the Court’s nearly 245 years of history; the first opportunity for countless Black women and children to see themselves represented at the summit of our federal judiciary. Brown Jackson is also the first justice ever with a public defender background, bringing a fresh perspective to major cases that affect the lives of every American and marking the first step in a long journey to restoring public confidence in the Supreme Court.
As criminal justice advocates and criminal defense attorneys, we cannot overstate how crucial a representative and highly qualified judiciary is to protecting our constitutional rights and ensuring equal justice for all. Every day, our courts decide on major issues that matter to every American, such as environmental protection, voting rights, education funding, criminal justice, and reproductive rights. But it is state courts that hear an overwhelming majority – more than 90 percent – of those cases.
Within state court systems, indigent defenders – private, non-profit, and government attorneys representing those who can’t afford a lawyer on their own – are tasked with handling an outsized percentage of criminal cases. In Cook County, for example, more than 80 percent of the criminally accused are represented by public defenders alone. What that means in practice is that indigent defenders end up with far more direct experience rooted in interactions with the struggles of poor and marginalized communities, whether it’s interviewing folks in jails and prisons or visiting them in their own communities. Our justice system was founded on the presumption of innocence and the promise of due process – public defenders and other indigent attorneys know this better than anyone else, and that kind of professional experience is essential if we want our courts to be balanced.
Illinoisans, like all Americans, expect their judges to represent their lived experiences and their communities. Folks tend to more easily trust in courts they feel connected to, and that trust is essential to a functioning justice system. But it won’t appear on its own, especially if courts aren’t representative.
Judge Brown Jackson offers a brilliant example for state courts, where judges with public defender backgrounds remain the exception. A 2021 report found that nearly 40 percent of sitting state Supreme Court justices were former prosecutors while only 7 percent are former public defenders. On the federal level, too, prosecutors are drastically overrepresented in our courts, including the Supreme Court. Such stark levels of underrepresentation for judges with public defender backgrounds can only be bad news for Americans expecting a fair shake in court.
Lived and professional experiences inform the perspectives of our judges, who then bring that to the bench. Judges with professional experience as prosecutors represent only one-half of the criminal legal system, and may be more likely to issue convictions than not, or release harsher rulings. Judges with experience in criminal defense, on the other hand, carry a deeper understanding of how laws affect the most vulnerable members of our society. We’ve seen firsthand in our legal work how important it is to have both perspectives in a courtroom. A fair and balanced justice system can only be achieved through a highly qualified and representative bench of judges.
Representation on the bench showcased by decidedly qualified judges like Brown Jackson has proven to lead to fairer rulings and better decision-making. Representation also generates greater trust in the judiciary, creating role models for Illinoisans from every walk of life and providing an example for judges on less representative courts.
With plunging confidence in our nation’s courts, seeking greater representation in our judges is an obvious next step to inspiring trust in the American public. Whether it’s a small municipal court in Illinois or the Supreme Court of the United States, all we want at the end of the day is equal justice we can believe in. We don’t believe that’s too much to ask.