This was Roberts’s master stroke. During his confirmation hearings, he wasn’t just playing defense to survive the confirmation battle; he was also establishing an offensive position to reshape the nature of adjudication in the long term. There was a war over what judges could and should do. Establishing the umpire as an ideal would constrain judges who thought that their backgrounds ought to play a role in their decisions, as well as presidents who sought to appoint more women, blacks, Hispanics, Asians, Muslims, and gays to the judiciary. There was no need for diversity on a court of referees. And it would limit others who thought that the law was not neutral, clear, and set in stone, but rather frequently ambiguous and subject to changing meaning with changing times. The umpire judge was necessarily a textualist—a strict constructionist—with no right to look outside his little black book of rules to decide a case.
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Chief Justice Roberts’s metaphor has maintained its dominance, in part, because breaking the world down into objective technicians and biased ideologues aligns so well with our intuitions and observations about the judiciary. There really do seem to be some judges out there who insert themselves into the game or try to distort the outcome. Indeed, a majority of Americans feel that “judicial activism” has reached a crisis, and some three-quarters believe that justices are sometimes swayed by their political or personal views.
Yet the public doesn’t seem to agree on which judges are biased. For certain people, Justice Ginsburg is a dangerous activist with an agenda and Justice Scalia is a beacon of objectivity; for others, it is precisely the opposite. Likewise, while 45 percent of conservative Republicans believe that the Supreme Court has a liberal bent and only 9 percent believe that it is conservative, the opposite pattern exists for liberal Democrats: 48 percent believe the Court is conservative, while only 15 percent believe it is liberal.
Clearly, these numbers should give us pause. Something other than the facts is driving our notions of judicial impartiality. A prime culprit appears to be our general tendency to see third parties—including judges, the media, debate monitors, and referees—as more set against our side and more in favor of the opposition than they actually are. In one of the most famous demonstrations of this dynamic, people who identified as either pro-Israeli or pro-Arab were shown major-network television coverage of the 1982 Israeli military operation into West Beirut. Given the impact of cultural cognition (discussed in the jury chapter), it should come as no surprise that although the two groups watched the same clips, they saw different “objective” facts. What is surprising is that both groups saw the news as significantly biased against their side.
So, we may be primed to spot judicial bias even when it doesn’t exist. And, confident in the accuracy of our viewpoints, when a judge takes a position that we strongly disagree with, we are all the more likely to try to discredit him. The difference, then, between the judge we see as an activist and the one we see as an umpire may have nothing to do with their actual biases and everything to do with whether they share our perspective on the world.
But that’s only half of the problem with the umpire frame. In line with Roberts’s model, we tend to assume that judicial bias is a conscious choice. That’s why we have rules barring members of the judiciary from holding office in political organizations, soliciting gifts from those coming before the court, or allowing personal relationships to influence their decisions. But while there are rare incidents when a judge is found to have taken a bribe or ruled a certain way because a family member asked him to, such explicit, conscious bias is not the major issue that the judiciary faces. And the vessels of partiality are not a limited set of activist judges who have bad dispositions or lack character and integrity. As we will see, all judges are susceptible to numerous unappreciated biases that influence their perceptions of seemingly neutral facts and laws, as well as their ultimate judgments.
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While judges are meant to check their identities at the door of the courtroom—in keeping with Chief Justice Roberts’s umpire model—they simply cannot. As we saw with jurors, a person’s background and experiences necessarily color her perceptions, emotions, reasoning, and judgments. Under oath, Roberts claimed to bring true neutrality to his work, but there are no agenda-cleansed, ideology-free judges. They are a myth, no more plausible than a Supreme Court made up of eight unicorns and a troll.
Although it is hard to find a single judge who would admit to being swayed by her political leanings, researchers who analyzed more than twenty thousand federal court decisions found significant partisan bias in the way judges handled federal agency decisions. Democratic appointees disproportionately struck down “conservative” decisions (in which a corporation, like GM or Exxon, brought the challenge) and upheld “liberal” decisions (in which a labor union or public-interest group, like the Sierra Club, brought the challenge), while the opposite was true of Republican appointees. What’s more, although the charge is more often directed at liberal judges, conservative members of the Supreme Court actually scored higher on their degree of “judicial activism” (assessed by the percentage of agency decisions they elected to overturn). Other studies have revealed a similar link between a judge’s political affiliation and the treatment different parties receive, with judges appointed by Democrats more likely to act favorably toward minorities, workers, convicted criminals, and undocumented immigrants, and those appointed by Republicans more likely to act favorably toward big business and the government.
Of course, it is not just political orientation that matters; age, race, and gender, among other factors, all appear to influence how a judge goes about her job, just as they influence jurors. Although she was forced to retreat from her statements about how gender and ethnicity influence judging, Justice Sotomayor was right: identities and personal experiences do “affect the facts that judges choose to see.” And that means that those on the bench often prejudge cases. Justice Scalia, in particular, is frequently criticized for taking public stances on issues like gay marriage and then failing to recuse himself in later cases involving those issues. But the fact is that no judge or justice ever approaches a case with a genuinely open mind. They read briefs and hear arguments with brains shaped by Sunday school, military service, summers on Cape Cod, and years as a prosecutor or a parent. Researchers recently found that judges who had a daughter rather than a son were 16 percent more likely to decide gender-related civil rights cases in favor of women’s rights. The effect appears to be driven primarily by male judges appointed by Republicans. One theory is that having a daughter helps these judges better understand the challenges that women face on issues like equal pay and reproductive health, giving them a perspective that they wouldn’t otherwise have.
All of this makes the lack of diversity on our present courts a major concern. White men, for instance, are overrepresented almost two to one on state appellate benches, with nearly all other groups underrepresented. But it also raises a historical quandary. Our system is rooted in the principle of stare decisis—the notion that courts should generally adhere to the law as established by earlier cases—and many criminal statutes also reflect what judges decided many decades ago. What qualifies as rape? What are the elements of a valid self-defense claim? Should victims have to face their accusers in court? The psychological evidence suggests that we should expect very different responses depending on the gender, religion, sexual orientation, and political orientation (among many other things) of the judge or legislator making the call.
Yet the answers we have are largely the creation of a very narrow band of Ivy League–educated Christian men of northern and western European ancestry. The Supreme Court was pumping out precedent for almost 180 years before the first African American had a chance to share his perspective, more than 190 before the first woman left her mark, and 220 before the first Hispanic authored an opinion. So, even if you happen to come before a Latina judge whose background and perspective actually benefit you, she will be operating under an elabora
te legal structure built over centuries by individuals whose experiences may be quite foreign to your own.
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Judicial decision-making is affected not just by who a judge is but also by how she thinks. As we’ve seen, our decisions are governed by both fast intuitive processes that operate automatically and slower, more controlled deliberation. You might suppose that a judge, because of the nature of her job and training, would rely almost exclusively on deliberative reasoning, but the reality is that judges are frequently—or, some researchers assert, predominantly—intuitive deciders. Like the rest of us, they rely on mental shortcuts when they need to make a judgment, whether that involves allowing a piece of evidence before a jury or sentencing someone to prison.
Sometimes these automatic rules of thumb are quite helpful. When a judge isn’t sure whether to overrule an objection, he may take a cue from his previous interactions with the lawyer whose objections are almost always superfluous and the fact that opposing counsel seems exasperated. That can lead to the right decision. Unfortunately, these intuitive processes can also result in systematic errors when they rely on irrelevant cues and dubious connections.
Consider the so-called anchoring effect, whereby an initial numerical value—which is made salient by, say, my asking you for the last two digits of your phone number—ends up informing a subsequent appraisal, like how much you think a bottle of wine is worth. By the mid-1970s, researchers had shown that numerical anchors exert a strong force on people’s judgments about things like the percentage of United Nations members that are African countries, but it seemed a significant leap to think that they might influence an experienced judge on a matter of real importance, like how much a car accident victim should be awarded after losing his right arm or how much time a rapist or repeat shoplifter should spend in prison. Yet when researchers took up these questions with real judges, they found clear evidence of the power of anchoring. Asked to sentence a hypothetical defendant, judges were significantly influenced by cues that shouldn’t matter: a number provided by a journalist during a recess telephone call (“Do you think the sentence for the defendant in this case will be higher or lower than three years?”) or a prosecutor’s sentencing recommendation that the judge was told was randomly generated. Shockingly, even rolling a set of dice affected the sentences that judges handed down.
One of the things that was so surprising about this research was that expertise and experience did not act as a tonic. Participants who were experts in criminal law and who had dealt with cases similar to the hypotheticals were just as influenced by the irrelevant numbers as legal professionals with no such background. And while other research suggests that expertise can, in certain circumstances, help judges avoid cognitive pitfalls that befall lay-people, in this case all it seemed to do was make judges feel more confident in their sentencing decisions.
The source of the problem is no secret: judges often have to decide questions under conditions of uncertainty. How does one know for sure where bail should be set, whether a photograph of the defendant is unfairly prejudicial, or when to declare a mistrial? It doesn’t help that the evidence judges rely on to answer these types of questions is frequently contradictory, thanks to an adversarial system in which the prosecution and the defense are tasked with marshaling the facts that support their respective positions. As a consequence, judges are susceptible to various false signals that seem to offer a way out. And the legal rules designed to keep judges on course often come up short.
Judges are required, for example, to disregard legally prejudicial and irrelevant facts, like a defendant’s arrest, five years earlier, for snatching a purse. While that fact may make the defendant seem more likely to have committed the burglary at issue in the present case, it does not go any distance toward proving his guilt. However, in two separate sets of experiments, researchers found that real judges asked to decide a hypothetical case were often unable to put such information to the side—even when they were explicitly reminded that the facts they had learned were inadmissible.
A similar dynamic is at work when it comes to gender, race, class, and a host of other factors. Judges are well aware that none of these variables should influence decision-making; indeed, they regularly instruct jurors to ignore such differences when assessing witnesses, defendants, and attorneys. But judges are part of a society in which all of these factors carry strong associations, from stereotypes about a woman’s role in raising children to feelings about transgender people. And it’s not a simple matter of taking off one’s prejudices in the robing room.
If judges consistently carry biases, does that mean they are consistent in their biases? Interested in this question, a set of researchers decided to look at how judges make decisions over the course of the day. The investigators turned their attention to eight experienced judges serving on two Israeli parole boards.
Overall, these judges rejected 64.2 percent of the requests made by prisoners. But that wasn’t what the researchers were interested in: they wanted to know about the judges’ decisions at different times of day. Did it matter whether a case appeared before the board in the early morning or right after a midday break? For an umpire judge, it wouldn’t matter: a strike is a strike is a strike, no matter the location of the sun. But what about for these real judges?
An analysis of more than a thousand rulings showed that the judges were significantly more likely to grant prisoners parole at the beginning of the workday or after one of the two food breaks—ruling in favor of prisoners about 65 percent of the time—than they were at the end of the day or right before a break, when favorable rulings dropped almost to zero. Moreover, factors like the severity of the crime and the amount of time the prisoner had already served—which should influence judges’ decisions—tended not to have an impact on the rulings. The time of day seemed to be the important thing.
How could this be?
The study’s authors hypothesize that as the day wears on, judges become mentally depleted, causing them to go the cognitively easy route and stick with the status quo: denying parole. Repeatedly making decisions taxes our mental resources, and to overcome the fatigue we may require rest or increased glucose—literally, food for thought.
What is particularly alarming is that this was not some laboratory experiment. The two parole boards involved in the study process approximately 40 percent of all requests in Israel. And the judges had no idea of the nature or extent of their bias. That’s one of the reasons mental depletion can be so dangerous: often you won’t feel depleted at all, so you won’t see any reason to doubt your judgment.
Judges, of course, want to be consistent. And one of the most disheartening recent findings is that this desire can actually lead us to be more biased. As a professor, I face this problem every semester when I sit down to grade exams. In my Criminal Law course, for instance, I can give no more than 20 percent of the students an A or A–. Although, statistically, it is entirely possible that in a class of eighty I might get three A’s in the first five exams, my expectation is that only one of the five will be an A, and that expectation threatens to alter how I grade (in this case, encouraging me to judge the strong exams at the beginning more harshly). Researchers have dubbed this phenomenon “narrow bracketing”: those who must make a continuous flow of judgments assess subsets of these judgments in isolation (say, all of the exams graded before lunch, or all of the cases seen in one day) and avoid deviating too much from the expected distribution. According to this research, although a judge should count on occasionally having five great candidates for parole in a row, after four successive grants a judge is less likely to grant the fifth prisoner’s request simply because it differs from the pattern he expects (that is, only about two out of every three people being granted parole).
That a judge’s decision in one case might influence his next decision, or that the time of day when the case is heard might have an impact on the outcome, is totally antithetical to our conception of a fair justice system. And it i
s vital that we continue working to better understand the forces that shape judicial decision-making. As the legal theorist and appellate judge Jerome Frank wrote all the way back in 1930, “If the law consists of the decisions of the judges and if those decisions are based on the judge’s hunches, then the way in which the judge gets his hunches is the key to the judicial process. Whatever produces the judge’s hunches makes the law.”
Judges, then, are not much like Chief Justice Roberts’s beacons of objectivity, neutrality, and disinterest. But, in truth, neither are real umpires or referees.
While some social scientists have been looking at judicial decision-making, others have been investigating bias in referees. The findings are staggeringly similar: across different sports, referees who appear committed to being neutral and objective end up making skewed calls and managing matches unfairly. Tennis officials, for instance, are subject to perceptual bias akin to the influence of camera perspective on judges and jurors. The spot where an umpire perceives a ball to land is shifted in the direction it is traveling, so he is more likely to call balls out that are actually in than to call balls in that are actually out. Like their judicial counterparts, referees are also swayed by factors that are meant to be irrelevant. White umpires give white batters smaller strike zones than they give black batters, tae kwon do competitors dressed in red tend to be awarded more points than those in blue, and the taller of two soccer players involved in an ambiguous collision is more likely to be called for a foul. In addition, as with judges who expect a certain distribution of parole denials and subconsciously alter their decisions accordingly, basketball refs are inclined to even out foul calls, and baseball umpires tend to reduce the strike zone with two-strike counts and expand it on three-ball counts. Finally, like judges, referees are not always able to ignore the roar of the crowd: home-team biases are robust and pervasive across numerous sports, and the larger the crowd size, the greater the favoritism.
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