Witnessing a panel majority made up entirely of white men advance Brett Kavanaugh’s confirmation to the Supreme Court through the Senate Judiciary Committee last month served as a stark reminder of the fact that white men still dominate the most powerful institutions in this country. That homogeneity helps produce high-profile outcomes like the elevation of a white man who stands credibly accused of sexual assault and perjury to the highest court in the land. Many of America’s least visible power centers, however, are similarly, albeit less conspicuously, homogenous. The damage of the lack of diversity in those bodies is no less acute.
One much less visible, much less scrutinized, but significantly influential organ is the committee that decides what rules govern civil litigation in our federal courts. That may sound esoteric, but federal civil rules can play a big role in determining who wins and who loses in court. For example, if you think your boss fired you because of your race, you can take your case before a judge in federal court. But if you want to find out what your supervisor was writing about you in internal company emails, you’d better consult Federal Rule 26, which governs “discovery.” And if you want to band together to bring your case in a class action, then Federal Rule 23 is going to be your friend—or more likely, your enemy.
That’s the reality that confronted a group of women at Microsoft recently. Earlier this year, three Microsoft engineers filed a lawsuit alleging that the company’s gender-biased corporate culture and decentralized promotion procedures made it more difficult for women than men to climb the career ladder. As there were roughly 8,600 female engineers at Microsoft, each of whom had to contend with the same atmosphere and promotion process, the initial plaintiffs sought to file a class action. Not so fast, ruled a federal district court: One of Federal Rule 23’s requirements is that potential class members share “commonality”—similar factual and legal circumstances—and the fact that all the engineers worked in the same male-dominated culture wasn’t enough to establish that requirement. Instead, the plaintiffs would have had to show that Microsoft’s culture and practices affected each engineer’s promotion prospects in roughly the same way—a very difficult bar but one that the Federal Civil Rules Committee has the power to change.
That committee is a group appointed by the chief justice of the United States, John Roberts. Of the 136 individuals who have served on this prestigious body, 116 members have been white men, 15 have been white women, and 5 have been men of color. Of the current 14 members on the committee, nine are white men, four are white women, and one is a black man. These members have also mostly spent their careers working for large law firms that defend companies against class actions, and not the plaintiff-side firms that bring them.
In other words, the demographic composition and professional background of the Federal Civil Rules Committee members make that body more likely to make it more difficult to bring class actions rather than easier. The same is true of discovery—the highly regulated process of forking over potentially damaging information to the other side in a lawsuit. Discovery matters more to plaintiffs than defendants, because plaintiffs carry the burden of proving their case. Conversely, discovery costs defendants money. So, in 2016, the committee adopted a controversial rule that requires a judge to assess the “proportionality” of discovery requests, so that plaintiffs with smaller cases will get less access to information—and therefore less justice—than plaintiffs with larger cases. Who will be hurt by this? Employees and consumers who seek to hold corporations accountable for their misdeeds. And while large, powerful defendants benefit by keeping their dirty secrets hidden, the average defendant stands to gain little from this rule change—studies repeatedly show that in most litigation the cost of discovery is simply not that high.
That the rules matter so much makes the composition of the committee responsible for those rules all the more troubling. Committee members serve for up to two three-year terms, so Roberts has had multiple occasions to appoint new members. One justification offered for the lack of diversity on the committee is that Roberts does not have enough qualified diverse elite lawyers, federal judges, and academics from which to choose. After all, men of color and women of all colors have been systematically excluded from the legal profession. Some take this history of exclusion as an argument that we must wait for change to come. But the numbers do not support this argument. For example, six federal trial judges serve on the committee. Fourteen percent of federal trial judges are black and 5 percent are Hispanic, yet no black or Hispanic federal judges currently serve on the committee. Similarly, almost 12 percent of federal trial judges are women of color, yet not one woman of color currently serves—or has ever served—on the committee. The pool of candidates is there. It is the institutional will that is missing.
The fact that rules are technical does not immunize them from bias. Social science studies show diverse perspectives can help mollify decision-makers’ potential biases, identify details other decision-makers may miss, and encourage deeper thinking about complex problems. Our eyes tell us even more. The game is run by a group of white men, not just in the high-profile institutions we so often see in the media but in the smaller, less visible pockets of power that surround us. In this case, the fix does not depend on an election, on changing social norms, or even on a nomination process. The time has come for the chief justice to commit to ensuring that the rule-making committee’s racial and gender composition is more representative. The evidence of imbalance is clear, and the action to be taken is quite simple.