Nina Varsava , Michael A. Livermore, Keith Carlson & Daniel N. Rockmore, Judicial
Dark Matter, 91 U. Chi. L. Rev. 1949 (2024).
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 injudicial 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 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.
