Pluralism in America: Why Judicial Diversity Improves Legal Decisions About Public Morality
University of California, Berkeley, School of Law, Chief Justice Earl Warren Institute on Law & Social Policy
April 24, 2012
New York University Law Review, Vol. 81, No. 3, 2006
Why does the race of judges matter? This Note argues that racial diversity in the judiciary improves legal decisions about political morality. Judges play a substantial role in regulating our political morality; at the same time, race and ethnicity influence public views on such issues. In cases that involve difficult legal questions of political morality, judges should seriously consider all moral conceptions as potential answers. Racial and ethnic diversity is likely to improve the judiciary’s institutional capacity for openness to alternative views—not because judges of any given race will “represent” a monolithic viewpoint, but because of the likelihood that judges of a particular race or ethnicity will be better positioned to understand and take seriously views held within their own racial or ethnic communities. Judicial dialogue, taking place within appellate panels and across courts, serves to diffuse alternative viewpoints more broadly. Greater judicial willingness to consider disparate moral views should ultimately result in better decisions regarding political morality. Specifically, the judiciary may fashion new compromises to resolve political-moral dilemmas, judges and society may better understand the contours of such dilemmas, and the public may even arrive at new conclusions regarding basic questions of political morality.
Number of Pages in PDF File: 43
Date posted: April 24, 2012