The Realism of Race in Judicial Decision Making: An Empirical Analysis of Plaintiffs' Race and Judges' Race

Abstract

American society is becoming increasingly diverse. At the same time, the federal judiciary continues to be predominantly White. What difference does this make? This article offers an empirical answer to that question through an extensive study of workplace racial harassment cases. It finds that judges of different races reach different conclusions, with non-African American judges less likely to hold for the plaintiffs. It also finds that plaintiffs of different races fare differently, with African Americans the most likely to lose and Hispanics the most likely to be successful. Finally, countering the formalism model’s tenet that judges are color-blind, the results suggest that judges of one race are more likely to hold for plaintiffs of the same race, suggesting a tendency toward insider group preferences. These findings illustrate the complex race dynamics in judicial decision-making and the consequences of a judiciary that does not reflect the citizenry’s racial diversity.

Keywords: civil rights, race discrimination, decision-making, empirical research, employment practice, courts, judges, workplace racial harassment, racial diversity, judiciary, race dynamics, implicit racial bias

JEL Classification: J21, J29, J70, J71, J79, K31, K39