Unfair (21 page)

Training, though, is only part of the solution. We also have to decide whether there are some kinds of expert testimony on emerging science that judges should not consider.
We could very well bar mind-reading testimony from the courtroom altogether, prohibit the police from interrogating suspects using fMRI, or require a special type of warrant in order to “search” a person's brain for memories of a crime.

For centuries, we've espoused a robust commitment to protecting privacy.
Under traditional English law, even when authorities had a warrant, the government was not allowed to access a person's private papers.
In the United States, the Fourth and Fifth Amendments were designed to protect the privacy of all men and women, even those accused of the most heinous crimes. Yet many of us think differently today about privacy: we willingly share our inner secrets, beliefs, hopes, and emotions on social media to casual acquaintances and often strangers.
Many of my students shrug their shoulders when I point out the way corporations now
collect and analyze demographic information and personal data on buying habits, Internet usage, travel history, and countless other details of our lives in order to predict our behavior. So what if a company knows that I'm gay or pregnant or considering leaving my husband before I've told anyone else? Revelations that the U.S. government has been widely spying on foreign heads of state and its own citizens have not seriously imperiled those in power.
The truth is that many Americans may not see looking into a suspect's or defendant's mind without consent as a “fundamental affront to human dignity,” as the ACLU recently characterized it.

But we—all of us, not simply a few neuroethicists—need to stop and consider the matter: we owe it to future generations to make an active choice on the proper balance between privacy and security.
Given the different cultural backgrounds that people bring to the table, our best bet may be to think about things from the perspective of someone who knew she would one day be accused of a crime but did not know whether she would be innocent or guilty. With that outlook, we wouldn't go down the road to routine police questioning using brain scans until the science was very settled indeed. We might, however, be supportive of a defendant's right to bring in even imperfect proof of truthfulness.
There's no reason that prosecutors and defendants should have to meet the same hurdles when it comes to lie-detection evidence. And in a period of less than absolute certainty, it seems fitting that mind-reading technology should serve as a shield rather than a sword.

John Roberts was sitting on the D.C. Circuit Court of Appeals when President George W. Bush nominated him for the Supreme Court in July 2005.
It had been more than a decade since the last justice joined the Court, and the stakes were further raised when Chief Justice William Rehnquist died that September. There were now two vacancies, and the president wanted Roberts to fill the preeminent position.
Standing in his way were confirmation hearings before the Senate Committee on the Judiciary.

Once upon a time, for a man with Roberts's sparkling credentials—dual Harvard degrees, years of experience as a government lawyer and in private practice, thirty-nine cases argued before the Supreme Court, and a federal appellate judgeship—the Senate would not have presented such a daunting challenge.
But the landscape had changed with the failed nomination of Robert Bork in 1987.

Like Roberts, Bork had a distinguished résumé and was sitting on the D.C. Circuit when President Ronald Reagan came calling. He was buoyed by significant conservative excitement—a dream pick, to many.
And despite the efforts of liberal groups to discredit him, public opinion was in his favor on the eve of the hearings.
But a series of missteps, with the microphone on and cameras
flashing, turned the tide.
In the end, fifty-eight senators voted no, providing the most decisive loss in the history of Supreme Court nominations.

Roberts and his team were determined not to make similar blunders, and they did not disappoint.
Where Bork had appeared humorless and arrogant—stating, at one point, that he wanted to serve on the Supreme Court because it would be “an intellectual feast”—Roberts played the part with humility and charm.
Where Bork had weighed in on hot topics—criticizing the reasoning behind
Roe v. Wade
—Roberts avoided taking clear positions on contentious issues.
Arguably the savviest move, though, came in how he framed being a judge:

“Judges are like umpires. Umpires don't make the rules; they apply them.”

Roberts certainly wasn't the first person to use the metaphor, but in the fall of 2005, it seemed a particularly compelling notion to many denizens of Capitol Hill and their constituents back home.
Good judges call balls and strikes.
They don't pitch or bat. They put their backgrounds, experiences, and allegiances to the side and apply the clear law to the clear facts.
Bad judges, by contrast, let their personal opinions about policy infect their rulings.
They are unelected activists, advancing their own ends by “interpreting” things where there is no room for interpretation and by legislating from the bench.

In setting out the two implicit categories and then claiming to be one of the good, objective judges—with “no agenda” and “no platform”—Roberts allayed the fear that had doomed Bork, of seating a conservative “ideologue” with a grand scheme.
More important, he engendered a world in which those who followed—Samuel Alito, Sonia Sotomayor, and Elena Kagan—were forced to acknowledge the basic truth of the umpire frame or face the possibility of rejection.

Justice Sotomayor's path through the Senate was made much more tenuous by the simple fact that she had previously voiced
her belief that “personal experiences affect the facts that judges choose to see,” and that judges might be unable to be truly impartial “in all, or even in most, cases.”
In Sotomayor's estimation, the law was often ambiguous, making interpretation unavoidable: “Whether born from experience or inherent physiological or cultural differences…our gender and national origins may and will make a difference in our judging.”

To many in the Senate and in the American public, this conception was utterly unacceptable.
As the Republican senator John Cornyn, of Texas, explained, Sotomayor's professional success was not going to carry her through confirmation: “The real question is how she views her role as a judge: whether it is to advance causes or groups or whether it is to call balls and strikes.”
While a few Democratic senators criticized the analogy for failing to capture the full nature of a judge's role, Sotomayor fell into line, offering reassurance that she was not an activist and would just apply the law.

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.

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.

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 elaborate legal structure built over centuries by individuals whose experiences may be quite foreign to your own.

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.