Judicial Dark Matter

57 Pages Posted: 24 Aug 2023 Last revised: 29 Feb 2024

See all articles by Nina Varsava

Nina Varsava

University of Wisconsin-Madison

Michael A. Livermore

University of Virginia School of Law

Keith Carlson

Dartmouth College

Daniel Rockmore

Dartmouth College - Department of Mathematics; Dartmouth College - Department of Computer Science

Date Written: July 20, 2023

Abstract

Judicial reform efforts aimed at rectifying historical gender and racial inequalities understandably focus on increasing the number of women and people of color on the bench. While this is an important program, this Article sheds light on another aspect of the representation problem, which will not necessarily be resolved through greater diversity in judicial appointments. This problem has to do with the understudied and often opaque practices of judicial administration. Through a large-scale empirical study of federal appellate decisions, we examine the distribution of judges along the lines of gender and race across decision panels and find systematic gender and racial imbalances in representation. We argue that these imbalances are most likely a product of disparities in decision reporting; some decisions, which we call judicial dark matter, go unreported, resulting in distortions in the representation of judges in reported cases. This is the first study of the representation and distribution of judges by gender and race across decision panels. Ultimately, our findings suggest that assessing the distribution of legal power and influence across gender and racial groups based on the numbers of judges from these groups serving on the bench may be misleading and may create an inflated sense of the influence of judges from historically underrepresented groups. The diversity reform agenda, then, as it is typically cast in the scholarly literature, the political sphere, and the popular media alike, is incomplete. One cannot hope to understand how representation translates into power nor to remedy demographic power imbalances in the judiciary without attending to the features of judicial administration examined here. We propose reforms to judicial administration aimed to protect against the kind of demographic biases in representation that we uncover.

Suggested Citation

Varsava, Nina and Livermore, Michael A. and Carlson, Keith and Rockmore, Daniel, Judicial Dark Matter (July 20, 2023). University of Chicago Law Review, Vol. 91, 2024 (Forthcoming), Available at SSRN: https://ssrn.com/abstract=4538555 or http://dx.doi.org/10.2139/ssrn.4538555

Nina Varsava (Contact Author)

University of Wisconsin-Madison ( email )

975 Bascom Mall
Madison, WI 53706
United States

HOME PAGE: http://law.wisc.edu/profiles/nvarsava@wisc.edu

Michael A. Livermore

University of Virginia School of Law ( email )

Keith Carlson

Dartmouth College ( email )

Department of Sociology
Hanover, NH 03755
United States

Daniel Rockmore

Dartmouth College - Department of Mathematics ( email )

United States

Dartmouth College - Department of Computer Science ( email )

United States

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