Transcript
Jordyn Reiland (00:05):
You're listening to RadioEd, the University of Denver podcast. I’m your host, Jordyn Reiland.
When Supreme Court Justice Stephen Breyer retired in 2022, President Joe Biden said he would nominate a Black woman to replace him, something that he believed was “long overdue.”
A few months later, Ketanji Brown Jackson was sworn in as the first Black woman to sit on the nation's highest court. Since then, President Biden has continued to elevate women and minority groups to the federal bench.
That's according to a December 2023 Pew Research Center analysis of Federal Judicial Center data. In fact, the data suggests that no president has appointed more demographically diverse judges.
The Supreme Court looks more like America than it ever has. But is that enough? And how does this type of representation align with whether people's policy needs are being met?
Phil Chen, an assistant professor of political science at the University of Denver, seeks to answer questions just like that.
Chen's work centers on the difference between what he calls descriptive representation and substantive representation.
Think of descriptive representation as gender, race, or ethnicity—effectively mirroring what you look like.
Substantive representation, on the other hand, is whether your specific interests are being met by those on the bench or in elected office. These can be issues like equal pay or paid leave.
This is how Chen describes it.
Phil Chen (01:27):
We often talk about Clarence Thomas as a particularly high-profile example of descriptive representation for Black Democrats, but not a particularly strong substantive representation for Black Democrats.
Jordyn Reiland (01:41):
Justice Amy Coney Barrett is another current example of descriptive representation.
Phil Chen (01:46):
Amy Coney Barrett, yes, she's a woman on the Supreme Court, but she is not nearly as likely as Ruth Bader Ginsburg was to uphold laws or statutes or executive orders that uphold the rights and status of women.
She's ultimately a conservative, and conservatives have a different view of the power and scope of the federal government than liberals, and so simply because of her ideological leanings, we would not expect her to be nearly as progressive on a lot of those issues and court decisions as Ruth Bader Ginsburg.
Jordyn Reiland (02:30):
Justice Ketanji Brown Jackson, on the other hand, is seen as both substantive and descriptive representation.
Phil Chen (02:35):
What she represents is not just the idea that a Black woman can ascend through the ranks of the legal profession and reach this point, but she's somebody who's going to represent their interests.
Jordyn Reiland (02:48):
Here's how Chen says he conducted his research.
Phil Chen (02:51):
We used a series of different sort of experimental as well as some observational evidence. Mostly what we did was a variety of different experiments where we would manipulate the composition of a lower court—a district court or a circuit court—and we'd say this nomination moved it from a majority white to a majority nonwhite court, or it did not change the racial or gender composition of the court.
We ran a lot of experiments on the types of decisions and the direction of decisions. So, we would give survey respondents a decision that says, OK, this is how a court decided. What we would do is we would randomly assign people to either, does the decision go in a liberal or a conservative direction, and what is the identity of the judge?
We used name cues to alter whether the judge would be perceived as an African American or Latinx or white or a man or a woman and we'd switch pronouns and things like that so that we could really isolate the effects of does seeing yourself, does having descriptive representation in the courts boost your support for the court? Or, is it really about did the court do something that you agree with? Does it support your social group in society?
Jordyn Reiland (04:20):
Chen's research doesn't focus on whether one type of representation is more important than the other. Instead, he stresses the need for both to create a greater sense of trust in the judicial system, particularly for minority groups.
Phil Chen (04:33):
It's not just about seeing yourself represented. Seeing yourself represented is absolutely important. It says, look, she could do it, he could do it. They could work their way through the system. They could overcome barriers and reach this pinnacle of the judicial profession.
But what we really also care about, and what we might even care about more, is that our interests and our beliefs are being represented on the courts now.
Jordyn Reiland (05:02):
You point out that when judges make decisions on issues critical to women that generally align with their values, trust goes up and perceptions of institutional bias go down among that population. So, can you provide an example of that? You talked a little bit about the methodology, can you explain why that's an important finding for people to think about?
Phil Chen (05:21):
Yeah, I think it's really important because, and this is one of the big things that we found. Yes, of course, there's some issues that are just so partisan that it doesn't matter abortion. You know, Republicans, regardless of their gender, want a court that rules against abortion access, and Democrats for the most part want a court that supports abortion access regardless of the gender of the individual. So some cases, absolutely, they're too partisan, they’re not about the identity of the individual there—the social identity that matters is partisanship.
On the other hand, there's other issues. One of the ones we talk about is maternal discrimination or pregnancy discrimination. So, coming back to work after having a child, does your job provide space and time for nursing or something like that. What we found there is that women, regardless of their partisanship, want a court that upholds the right of women to return to work and says, ‘no companies have to provide these kinds of services or access for women.’
So, one of the big findings was that it's not just about partisanship. It really is that your identity matters, but your identity matters because the decision is supporting people who share your identity, not because the person who's making the decision is a woman or a man.
Jordyn Reiland 06:56
Through his research, Chen hopes to address the misnomer that simply appointing more diverse justices to the bench will increase American support for the courts.
Basically, what he's saying is that having more women or minority groups on the bench isn't enough.
The Supreme Court isn't viewed nearly as favorably as it once was. Let's break it down with some data.
In 1987, 17% of people had an unfavorable view of the Supreme Court.
Now, in 2024, 51% of people say the same thing. That's a 200% increase in just 37 years.
So why are Americans so down on the Supreme Court? Chen says it's not that the courts weren't political before. It’s that they're taking on a higher profile role in American society. Now, the courts are weighing in on key issues like abortion and immigration.
Phil Chen (07:44):
I think the thing that was most surprising to us is how quickly people shift from wanting a descriptively representative court, a court that looks like them, to really caring about the substance. So much of what we've talked about and seen in politics says what people want, especially marginalized groups, is a court that looks more diverse, more representative. And when you ask people that in the abstract, without information about what the decisions are or things like that, they absolutely do want that, and it's important, right? This is not to say that descriptive representation is not important. We absolutely believe it is.
But what was interesting to us was how quickly people are able to say, well, wait a second. We care about that. But it's in essence a proxy. It's a way to say when we don't have any information about how they might decide, what their ideology is, we can rely on other identities. The likelihood is that maybe a woman appointed to the courts or an African American appointed to the courts is going to be more in line with my views. But as soon as you give that information, it's not sufficient. It's not a sufficient condition that a person who looks like you is constantly voting against your interests.
That is detrimental to support for the court, for the legitimacy of the courts, and if we really care about how people feel about the courts, and we should, we really should care and want a court system that people respect and believe is representative and unbiased. If we care about that, then we need to think about how those courts substantively represent the interests of marginalized groups.
Without legitimacy, without people or states or individuals or groups viewing a court system as legitimate—as producing decisions that even if you don't agree with them, you think that they've come about through a process, and that they are doing something that is respecting the rights and the status and the beliefs of groups in society—if you don't believe that, if you don't have this kind of legitimacy and belief in the court system, it's going to make it far more likely that you just ignore what the courts are doing, and the courts will lose a significant amount of power and it could be really detrimental to the enforcement of the of these laws.
Jordyn Reiland (10:24):
So if you had a 20-minute meeting with the Chair of the Senate Judiciary Committee, what would you tell Sen. Dick Durbin or anybody else on the committee about your work?
Phil Chen (10:34):
I think what I would tell them is that our work is well in line with political science knowledge. But what it really shows is that when they're asking questions, when they're evaluating nominees, it's important to give voice and status to marginalized groups and to ask questions and to see how these judges and justices would respect the needs and the desires and the policy wishes of all Americans.
There's a need to push back on the notion of judges and justices as neutral arbiters. Yes, you're going to get those stock answers, you’re going to get nominees saying, ‘Well, I'm just going to decide the cases’ the classic, my job is to call balls and strikes.
We know that's not the case. We’ve known for decades that’s not the case, that not how judges and justices make decisions, and so it's important to push beyond that. To say, yes, you may see your role as that, but even if you don't consciously do it, what we know from research is your own beliefs, your own ideology, your own social identities, are going to affect the way that you make decisions, and how are you going to take into account the beliefs, the will of marginalized groups, minority groups?
On the flip side, I think it's important to ask nominees, do you actually want a judicial system that is well respected and legitimized and seen as unbiased and supported by all groups in society? Because if you do, then you have to take account of the views and the beliefs of all groups in society. You can't have it both ways. You can't say, ‘I want a really strong, legitimate system, but I'm going to call balls and strikes.’ You can't have it both ways because it's not backed up by the data.
Jordyn Reiland (12:57):
In essence, Chen is saying that having people of color or women on the bench isn't enough to satisfy the needs of minority groups.
So, what at this point is enough?
Phil Chen (13:09):
What I would say is the way you create a system that is well respected and is enough is one you need the other branches of government to be able to do their job. You need Congress to be able to pass laws, you need the president to be able to enforce laws and then you need a court system, not that's calling balls and strikes, but a court system that recognizes that they have power to either move society forward, create social progress or hold society back at times, but also recognizes that they can work across sort of ideological coalitions, because they have certain beliefs in what are their founding principles, what are their judicial philosophies.
We are unlikely to get that though, because of the way that the nomination process has become so controlled and professionalized.
Jordyn Reiland (14:19):
A big thanks to our guest, University of Denver Assistant Professor of Political Science Phil Chen. More information on his work can be found in our show notes.
If you enjoyed this episode, I encourage you to subscribe to the podcast on Apple Music or Spotify—and if you really liked it, leave us a review and rate our work. It really helps us reach a larger audience—and grow the pod.
Joy Hamilton is our managing editor. Madeleine Lebovic is our production assistant and musical genius, James Swearingen arranged our theme. I'm Jordyn Reiland, and this is RadioEd.
