Approximately one in three lawyers are women. Fewer than two in 10 lawyers are people of color. And only one in 115 justices of the Supreme Court has ever been a woman of color. That number could soon double as Ketanji Brown Jackson has become the first Black woman ever nominated to the highest court in the country.
Madiba Dennie and Elizabeth Hira are uniquely positioned to discuss this historic nomination: They’re both women of color, they’re both attorneys, and they both work at the Brennan Center for Justice on issues of democracy and equity.
In the following conversation, lightly edited for length and clarity, Dennie and Hira discuss their own experiences as women of color in the law. Their discussion highlights the networks they have relied on, the progress that has been made and the challenges that remain, and the democracy they hope to build.
Madiba Dennie: The composition of the Supreme Court has been extremely white for, basically, ever. There is only a single woman of color on the Supreme Court, and there are nearly twice as many white men named John who have been Supreme Court justices as the total number of white women and people of color combined. That helps ground what a big deal this moment is.
Elizabeth, I know that you read this great piece talking about Judge Jackson and her classmates, who were also Black women and have this great network that supported each other. What are your thoughts about the kind of solidarity and network building among women of color in the legal space?
Elizabeth Hira: I’m thrilled to have this conversation with you. That piece in the 19th was really powerful because it was four young Black women, who were at Harvard together, who then went to Harvard Law, and who have seen each other through marriages, having children. That for me triggered two things.
One, thinking about the fact that each of us has a story about other women and other women of color who have made it possible for us to be able to have the success that we have—who are looking out for us.
When was the last time that you walked into a room and you were not like, oh, most of the people in here are different than me? I was a lawyer in Congress, and I constantly had that experience. I also constantly had the experience of people being like, “oh, so will you be taking notes?”
I sent the 19th article to two of my best girlfriends, who actually worked with me in Kamala Harris’ office because it was so resonant immediately to be like, “it’s us.” I would love for you to talk with me about your friend network. Who are your people, what stories are lifting you and making this possible?
There are nearly twice as many white men named John who have been Supreme Court justices as the total number of white women and people of color combined.Madiba Dennie
Dennie: The first thing that jumped out to me when you were talking about taking up space—I thought of one attorney in particular, Michele Goodwin, who is at Ms. magazine and hosts “On the Issues with Michele Goodwin.” She was a visiting professor at Columbia Law School when I was a student there, and she was doing amazing research about race, gender, law and the criminalization of pregnancy.
There was this incredible moment that stuck with me—this person gets it, and this is part of what it means to have different people in the room. There had been this discourse in the media: Can women have it all? And the struggle of raising your family and also being employed, and Professor Goodwin had this comment: Women of color have been doing that forever; they’ve been raising white ladies’ kids as their job. It created this wonderful moment—we can challenge the ways that we think about the law. We can be here to support each other.
I became her research assistant. I got to have this great relationship with a Black woman attorney, doing cool work. That’s why we did that previous talk with the program that Bonnie Stabile moderated and hosted by the Schar School of Public Policy at George Mason University.
When we had that chat with her, Jen Weiss-Wolf and Michele Goodwin, it was a wonderful full circle moment for me. I felt very lifted in that group. It’s important to have these networks and friendships where you can go for a gut check. We’re going to keep doing this.
Having this conversation today inspired me to scroll to the beginning of our Slack history because I was just curious, I wanted to see our origin story, and apparently, on Sep. 16, 2020, I sent you a Slack message, this was our very first message of where I simply said, hi, we’re going to be friends, so that’s how we kicked this off.
Hira: I remember that. I started August 31, during the pandemic, and immediately thereafter, Justice Ginsburg died, and I feel like that’s when all of our feelings are out, this is just what’s happening, and I loved that with you. I remember getting to have a conversation with you later that was just a sort of a safe space—to just be like, “how are you doing?”
Talk to me about your current network of friends and fellow lawyers. What’s that like?
Dennie: There are other women of color who I attended law school with, who will sometimes reach back out when we’re just experiencing frustration with the legal profession at large because there are so many ways that law can be hostile, not just to lawyers of color, but especially to regular people who have to interact with the legal system. It can be very frustrating thinking, this is the profession I chose, these are tools I know can be useful, but to what extent are they useful? You need to have people who also get it and who have experienced that, it’s more tangible for them. It is really lovely to know you can always turn to these people.
Women of color attorneys, whether they’re in public service or private practice, or working within the judiciary, all of us experience certain burdens because of the nature of being a woman of color in the law. Having that foundational shared understanding is helpful.
Hira: I think it’s interesting, when you say the burden we carry. It’s amazing, the intersectional burden. I feel like we’re eating impossible for breakfast.
Dennie: You’re right.
Hira: You’re told, You can’t do this because you’re a woman, you can’t do this because you’re a person of color. Watching that stuff and destroying it on the regular creates a sense of possibility that’s a backlash against all the people who would rather us not be able to succeed at all.
Dennie: That’s absolutely right. With the coverage of Judge Jackson, there are folks who have begun to recognize this is a big deal and how historic it is. I find it important to talk about the actual impact on the law rather than a symbolic impact. I think representation isn’t everything, but it’s certainly not nothing.
I did find myself feeling more than perhaps I anticipated when seeing her accept the nomination and thinking, wow, this is possible, and I know how hard she worked to get here. Many Black children grow up hearing you have to work twice as hard to get half as much. Thinking about how much she would have gone through to get to that point, what it demonstrated, and how this could serve our communities—it was awe-inducing.
Hira: I want folks to be as awed by her as an icon, but I also don’t want that to detract at all from the power that she’ll bring as a jurist.
Dennie: Exactly, I had this idea thinking, you know, Black Girl Magic is different than Magical Negro.
Hira: Talk about that, please.
Dennie: Yes, she is an incredible jurist with an amazing background and we need to lift that, but we shouldn’t expect that this is just some magical thing about putting a Black woman anywhere and then certain things happen. No, there’s work to be done.
To be realistic, there is a radical 6–3 supermajority on the court, at present, and so adding a single Black woman, even the most incredible Black woman, will only do so much. I think it’s important for us to keep two things in our heads at once. We can and should recognize that this is a historic and meaningful moment, and recognize that there are changes that will happen because of this. There’s lots of data that shows that diverse groups come to different decisions, and that it influences the deliberative process in a way that better serves the population.
Hira: You literally found data showing that, right?
Dennie: Yeah, there’s data, surveys, reports and articles spanning decades that shows the impact of adding someone of a different race to the bench, or adding someone with a public defender background which is dominated by prosecutors. I found several quotes from Supreme Court Justices across the years, especially those who worked with Thurgood Marshall, who were like, yeah, there was a lot I didn’t know that I know now.
Representation isn’t everything, but it’s certainly not nothing.Madiba Dennie
I want us to not put the whole burdens of the judiciary onto a single Black woman’s shoulders. Haven’t Black women borne enough? One person can’t fix everything, I can’t save everyone, but what we should do is look at this as an opportunity to think about more broad changes, like diversifying the federal and state judiciary—thinking about what structural changes will better empower the courts to make fair and equitable decisions for everybody. It’s a chance for us to think about our direction going forward and what we all can and should do.
Hira: I’m also really wary of that point of her being put on a pedestal such that we can toss her off. I’m aware that she is a human being, she should have the right to be a justice in the same way that other people do without people looking to her, to your point, to fix everything, which is just numerically impossible.
Ruth Bader Ginsburg said, ‘When will there be enough women? When there are nine women.’ That’s not to say you need to have a monolith on one side or monopoly on one side, but I think it is really critical for people to think about this in the whole continuum. I got to write about it for Ms.
Look, 108 out of 115 justices have been white men, and those people were mostly responsible for the precedent that is critical to our whole profession. You can’t leave aside the truth that only white men from the 1800s said separate but equal was great.
I always think about the way that precedent works in the law. Something like the change in Brown v. Board really took a feat of legal maneuvering to be able to get from literally hundreds of years of history of “Folks are not folks, folks are not citizens, folks are owned” to, actually, we need to be forward looking in America. I’m always really interested in that the interplay of both forgiving us the sins of our past but also creating legally sanctioned opportunity to get better.
Something like the change in Brown v. Board really took a feat of legal maneuvering to be able to get from literally hundreds of years of history of “Folks are not folks, folks are not citizens, folks are owned” to, actually, we need to be forward looking in America.Elizabeth Hira
Dennie: It used to be standard to ask federal judicial nominees, “What do you think about Brown v. Board?” I think this first came up in 1971 or so, around the beginnings of the impacts of Brown v. Board were starting to be seen. Judicial nominees became likely to say something like, Brown was right, Plessy v. Ferguson was wrong the day it was decided—this is a historical wrong that does not reflect the values that we like to think that the Constitution reflects. That shows a principled way for reevaluation. There are good and bad ways to evaluate precedent critically.
We did see during the past few years judicial nominees back away from that question, which I found scary and perhaps a sign of the times to come when the judges were less likely to agree that Brown v. Board of Education was rightly decided.
There’s the idea of “I don’t want any potential litigant to feel like I’ve already decided their case one way or another,” like “I want them to be sure they have a fair opportunity if they come before me”—but Brown v. Board? If you’re not willing to say that—that makes me think of fairness in the other direction, now, I think that people of color litigants, people of color lawyers could reasonably feel, “I don’t know if I’m going to get a fair shake in front of this judge because if they’re questioning the bedrock decision of the civil rights era that shaped the beginning of an integrated society,” that’s worrying.
There’s this concept of what does fairness look like, what does objectivity to the extent it exists or neutrality look like. I think these are things that become extra clear when you turn to Brown v. Board of Education and how judges are willing to think about precedents and the role of a judge.
Hira: To your point about neutrality, the lack of diversity on the bench has given us an excuse to not acknowledge the elephants in the room, about the fact that most of these people look the same.
I think about the marriage equality case in California that eventually became what was decided in Obergefell. There was a lawyer who was arguing that the judge should recuse himself from this gay marriage case because he himself was gay, and it caused this stir, because obviously, you can’t. If you look at the principle it’s not necessarily crazy—where you would say “you would recuse yourself if you were adjudicating a case about a company in which you invested in stock, right?” So I think some of these folks’ analog is, as a gay person, you’re invested in this gay question, and therefore, you should recuse yourself.
What was fascinating about it is that the bottom of that argument really creates a dilemma. Does that mean that people of color should recuse themselves from civil rights cases or that women should recuse themselves from sexual harassment cases (even though, obviously, they’re not the only ones who are sexually harassed)? It was amazing to me because what it did was peel back the patina of who among us is a neutral arbiter. In that case, the only people who are neutral arbiters in anything are essentially straight white men, and that is also what the judiciary coincidentally has looked like this whole time.
Taking that argument to its logical conclusion is troubling because what it does is affirm what that status quo of who actually is on the bench, like who actually gets to make the decisions for the rest of us, which is deeply problematic.
The other thing that’s crazy to me is that the lawyer, who made that argument about which judge should recuse himself, was then affirmed as a federal judge in the United States court system. Someone who thinks that argument is appropriate is now in the federal judiciary, and I look at that, as I think about you, as a plaintiff or rather even as a lawyer in front of that person, are you looking at them and thinking “I know that they think I have a vested interest in this case that’s different than anybody else”?
I call this the neutrality myth—this idea that these people are neutral because they’re at a remove. They’re bringing their personal experience to what this actually looks like, and I think not acknowledging that has been a real deficit. It’s just amazing that so many people can be in a tizzy about race and gender when it’s like you haven’t been a tizzy about the race and gender of the 108 people preceding this, which you should have been. If anything, folks were very reserved for not getting worked up about this as something that has been deeply problematic before. What do you say, if you’re coming up as a judge and I want to be like, well, Madiba, if I get to ask you about Brown v. Board, I should be able to ask you about Citizens United, what do you think about that?
Dennie: I mean, I might be inclined to say, yeah, ask about Citizens United, like why shouldn’t we have more full ideas of what judges’ types of analysis are?
This has overwhelmingly not been the case for decades of judicial confirmations. You get the dodgy, avoidant answers, but that’s also why a lot of people think that confirmation hearings are mostly theater and that they’re not actually useful or productive. Maybe it would be different if people did actually explain their stance and what they thought the legal reasoning was behind certain cases. Now, there would be professional consequences to doing so when senators who have vested interests in one outcome or another hear a decision that they don’t like and be like, “You don’t get my vote.” How do we try to understand what judges think, how they deliberate, how they might rule on an issue without further politicizing the process in a way that is harmful for folks? I don’t know if I have a simple answer, because it’s not really a simple question.
Hira: These are the landmines that I think we’re going to be navigating as we move forward in this moment. Maybe the first step is to say we’re noticing this differently than other people. I experienced Roe v. Wade perhaps differently than someone who is not capable of becoming pregnant, and that acknowledgement alone doesn’t admit a liability on my side, but is maybe an asset, in how we make these decisions that affect other people’s lives. It also brings me to some of the data that you and I were talking about earlier. We had one of our wonderful legal interns, Corina Scott, help with putting together some data about building the pipeline. Hopefully, Judge Jackson’s nomination is a beacon of the beginning of that conversation.
But what’s amazing is it made me think what’s the data that we actually have. We reviewed data from the American Bar Association’s 2021 Profile of the Legal Profession. I wanted to know about gender for lawyers, who are going to be in a pipeline for who becomes judges, and 37 percent of all lawyers are women. I didn’t even know it was this unequal now, but 63 percent of all lawyers are men. I wanted the intersectional assessment of it, so we could look at the women of color pipeline. I was shocked to find out that we do not know. We do not even collect data about how many women of color there are in the entire legal profession. We’re asking people to build a pipeline, and we don’t even get counted. We have no idea.
For context, we did get race and ethnicity numbers, really important to have just learned that 85.4 percent of all lawyers identify as non-Hispanic White. So 85 percent, and then of the breakdown, I had the thought that no other individual racial group even constitutes 5 percent of the entire legal profession.
Hira: Yeah, 4.8 percent are Hispanic, 4.7 percent of all lawyers are Black, 2.5 percent of all lawyers are Asian, and 0.4 percent of all lawyers are Native American.
It’s just amazing that so many people can be in a tizzy about race and gender when it’s like you haven’t been a tizzy about the race and gender of the 108 people preceding this, which you should have been.Elizabeth Hira
Dennie: It’s so damning. Those are shocking numbers showing who gets to make, and enforce, and shape the rules that everyone else lives by. It’s just a very small, narrow, kind of homogenous group of people, but it impacts like a large, diverse group of people. Goodness gracious.
Hira: I sometimes think that we don’t talk about the water in which we swim, so I think lifting statistics that makes it extraordinary to be like those four women who went to Harvard Law together. Just because these numbers are this small doesn’t mean you couldn’t do it, too.
We need to recruit more. I’m hopeful that this information may inspire some young people who were thinking about doing some other thing to come join us in the law, because I think these are the first frontiers of justice—to be able to shape the law. If you knew that only 5 percent or fewer than 5 percent of all lawyers are Hispanic and that in the history of the Supreme Court there has been one Latina, maybe you hear this and you go like, “Why not me? Maybe they need me.”
Dennie: I would say they absolutely do need you in different ways. There’s one way in that decisions are being made about groups of people on the basis of that group identity without anyone from that group present, and that’s a really deep fundamental flaw. You’re missing a whole bunch of people’s perspectives. There’s just a heap of analysis that could be included that’s not, and so your deliberative processes are going to be weaker for it.
There needs to be infrastructure to bring more marginalized people into law and have the tools to succeed once we’re there. And infrastructure exists for some people already, and there’s a lot of people for whom it does not exist. During my law school graduation, I’m literally sitting on stage because I was one of the graduation speakers, I am on stage, and I get a text message from my mom in the audience, she says, “One of the other parents next to me just told me about clerkships, what are those, and why haven’t you applied for one?” I was just like “Seriously, mom, right now?”
But my mom had no idea what a clerkship is. I had no idea what a clerkship was until late into my first year of law school. There are other folks who may have had lawyers for parents or lawyers in their family who came in already planning on getting a clerkship, knowing which professor they were going to speak to for their recommendation because that professor had the homie hookup with a certain judge. All of that was novel to me. But for other folks, there’s this built-in highway that you could just drive right along into a judgeship.
Hira: I’m still waiting for someone to have the clerkship conversation with me, for what it’s worth. I always knew that I wanted to be a public interest lawyer, which means the only options that were ever really presented to me were “be a public defender,” in which case you, again, are going into a system that you know is designed to not help your clients, or “be a legal aid lawyer,” which means you also are going into a system that is not designed to help your clients, right?
I think it’s sort of amazing that this notion of the public defender as this Sisyphean task is maybe not as discussed as often as I would hope because we’re equipping people to be able to go fight granularly in a system that needs wholesale reform. It makes me think about the historic significance of Judge Jackson being the first person we’re considering with significant public defender or criminal defense experience, since Justice Marshall.
Dennie: It connects to misconceptions about crime and misconceptions about what it is public defenders do. I think there’s this idea that public defenders are getting criminals back onto the streets as opposed to protecting people’s civil liberties, making sure that no one is wrongfully put behind bars and is caged and their freedom taken away, or making sure that the government actually proves its burden to secure a conviction. So instead, you get this idea like “soft on crime.”
Also, when some people think of who is going to have a public defender, they might not necessarily think of people like them. They think of different people, people perhaps with different complexions, and so they might not want to see folks appointed to the bench who they think are wrongfully helping the wrong kind of person. Whereas with a prosecutor, for instance, they might instead think they’re the ones doing the right thing, defending the right/white kind of person and their property. My assumption would be that that’s part of the framing that helps corporate attorneys and prosecutors become way overrepresented in the judiciary than public defenders and public interest lawyers.
And it’s so important to get people onto the bench who have experience representing the little guy as opposed to just big business or potentially the state. There’s a whole huge range of experiences that have been excluded, and you’re definitely going to see the impact of that in jurisprudence.
When people think of who is going to have a public defender, they think of different people, people perhaps with different complexions … whereas with a prosecutor, for instance, they might instead think they’re the ones doing the right thing, defending the right/white kind of person and their property.Madiba Dennie
Hira: It makes me think of the systems in which people are operating. I resisted being a lawyer for a really long time because I’m a Caribbean immigrant from a country that was destabilized by the United States, and so my first experience of the law was, “Oh, this is a thing that is a tool that is used by powerful people against vulnerable people,” and I did not want to go into a system that was doing that to people.
The other thing that you can do is wield that as a weapon on behalf of those people who are really vulnerable. But that’s a systemic issue. You may be going in to make that change, but you are fighting a massive, massive system or fighting within that system on behalf of people, who are systemically, frankly, marginalized and hurt. In addition to diversifying who actually gets a seat at the table, we also need to think about the fact that this is not something as simple as like “add marginalized people and stir,” right, that you actually…
Dennie: You can’t just sprinkle a color in.
Hira: Exactly. You’re sticking these people into this system that, if you don’t actually critically interrogate the whole system, you were truly dooming them to fail, because you don’t want the rest of the system to change, you just want to say, “Hey, now that you’re here, we’ve got a token box that we can check, and we’d like to move forward.”
And again, this is really complicated in a system built on precedents. How do we maintain our credibility as lawyers, as judges, as people who are arbiters, that are just as credible as anybody else, while also bringing forward the voice of being able to challenge the very infrastructure itself to say, “you are asking us to give you credibility in a place where you and I couldn’t vote, we couldn’t serve on juries, we certainly couldn’t be judges, we barely could be lawyers, and we were probably going to be even more primarily prosecuted than other people who looked like us, right? So you want me to honor that system?” It’s hard for me to have that conversation without being able to acknowledge sort of the inherent tension in that.
Dennie: There’s an underlying question you’re getting at, which is how do we build and create positive change in a profession that’s built on negative precedents. How do you use the legal system for change when we have to depend on these bad things?
These past few years, especially with this 6–3 supermajority court now, have been marked by legal change despite it being a system based on precedent. Sometimes that’s in the form of hollowing out a precedent until it doesn’t really mean anything anymore, or just discarding it all together.
Perhaps, if we’re asking public interest minded attorneys how do we make changes to a system built on precedent, and then, how do you maintain your integrity, maybe we’re asking the wrong people, right? Maybe we need to be asking some other people how do you maintain your integrity or how do you think you’re maintaining your integrity while you’re making these wildly divergent decisions, and how is it that you can justify it? Because sometimes it’s literally not justified. I mean that literally in the sense of decisions on the shadow docket, where there’s no actual accompanying opinion.
Hira: Is the nomination of Judge Jackson supposed to be one of these antidotes to an environment where we are reasonably worried about the credibility of the court and a public that is watching the legitimacy of its institutions be challenged by the last couple of years?
Dennie: It’s always important to me to not just look at who the court is, but what the court does. I don’t think we should approach any reforms, whether in terms of personnel or structural things, like “Will this make people think the court is legitimate?” I’m concerned about the practical impact and effects. Will it result in fair access to the courts? A more just and democratic society? Because if it doesn’t do those things, then I don’t want it.
Hira: Could you have a claim to legitimacy when you simply do not reflect the people that you are deciding for? I really struggle with that, as a lawyer. I can’t say that you do. I’m not arguing for a quota, but if you have 5 women in a history of 108 people, you should not be making decisions that deeply affect women. On one hand, as lawyers, we’re not supposed to just declare the court illegitimate.
Dennie: These numbers are horrifying, and decisions have been made about people without these people. That’s awful, and it ties into the data of who gets to be part of the political community and who gets to have real membership in society. When we make changes,-any change to the courts, you think, “Will this build the right kind of legitimacy?”
Hira: To this point, it’s like how America has operated. If we were always to have a backward-looking lens on where we’ve failed, we wouldn’t be able to move forward.
Dennie: It’s always something that we’re trying to work towards, there is a lot of work to be done, and we should and think about how to build a better future.
Hira: I hope that this is one of thousands of conversations that are happening all over this country about changing who gets to decide for the rest of us.
This is a really great start. We’ve got a really long road ahead of us, but I think being able to say “this is possible” … it creates a ripple that welcomes somebody else in.Elizabeth Hira
Dennie: It’s kind of amazing, right? As we think about building that pipeline and getting more women of color here and broadening the experiences that people bring with them into whatever room of attorneys you’re in, I think about those four Black women who were roommates at Harvard and went on to Harvard Law—like it’s possible that there’s a whole new set of conversations happening right now of people imagining new possibilities and what the future could look like.
I think being a public interest lawyer makes you by definition a little bit of an optimist because you have to believe and imagine that things could be better, and shape a better tomorrow.
Hira: That’s my hope. This is a really great start. We’ve got a really long road ahead of us, but I think being able to say “this is possible,” we can normalize—not just at the federal level, but at state courts too—and expand who is called to the bar, and all those places that get to make decisions about the rest of us. It leaves me hopeful, with all of the work that we do in the world, I always hope that it creates a ripple that welcomes somebody else in.
Dennie: This is opening the door just a little bit wider so more and more people can come in.
Hira: I love that idea. It’s been a total pleasure.
Dennie: Thank you for tuning in and please continue to follow and support the work of the Brennan Center for Justice, and Ms. magazine—both fighting in different ways but a shared fight for justice for all.