Unfair (60 page)

As we will see, all judges:
In essence, we are guarding our benches with a faulty alarm system. The sirens—whether part of our formal judicial code or sounded in public opinion—certainly discourage certain problematic behavior. But the system is plagued by false alarms and is frequently triggered by disagreements over substance, not by actual bias. When he penned the majority opinion upholding Obamacare, Chief Justice Roberts went from objective umpire to backboneless politician in the eyes of many, not because he suddenly decided to stop being fair and balanced, but because his substantive decision in a particular case was objectionable to a
certain subgroup of citizens. Albert R. Hunt, “Washington Flip Flops on Justice Roberts,”
New York Times
, July 1, 2012,
http://rendezvous.blogs.nytimes.com/​2012/​07/01/washington​-flip-flops-on-justice-roberts/
; “Congressional Baseball Game 2012: Political Wounds Still Fresh,” CBS News, June 29, 2012,
http://www.cbsnews.com/​8334-503544_162-​57463434-503544/congressional-baseball​-game-2012-political-wounds-still-fresh/
. Once again, perceiving bias provides a potent means to minimize ideas and views that conflict with our own. And the bias bell stands ready to ring for the rarest and most blatant incidents of partiality, while remaining utterly silent as every judge, every day, in every case is pushed and pulled by hidden tides.

While judges are meant to check:
John Irwin and Daniel Real, “Unconscious Influences on Judicial Decision-Making: The Illusion of Objectivity,”
McGeorge Law Review
43 (2010): 1–2.

Under oath, Roberts claimed:
Kenneth Jost, “Roberts Says He Has ‘No Agenda' on Bench,” NPR, September 12, 2005,
http://www.npr.org/​templates/story​/story.php?storyId=4843769
.

Although it is hard to find:
Cass R. Sunstein and Thomas Miles, “Depoliticizing Administrative Law,”
Duke Law Journal
58 (2008): 2193–2230; Cass R. Sunstein, “Judicial Partisanship Awards,”
Washington Independent
, July 31, 2008,
http://washingtonindependent.com/​350/judicial​-partisanship-awards
.

Democratic appointees disproportionately:
Sunstein, “Judicial Partisanship Awards.” In the rare instances where the method of classifying decisions as “liberal” and “conservative” did not withstand scrutiny (for instance, where the public interest group bringing the challenge was a conservative group), the researchers adjusted the coding. Sunstein and Miles, “Depoliticizing
Administrative Law,” 2200. Justice Thomas was the most partisan member of the Supreme Court and was 46 percent more likely to support invalidating a liberal agency decision than a conservative agency decision. Sunstein and Miles, “Depoliticizing Administrative Law,” 2205–06.

What's more, although the charge is:
Sunstein, “Judicial Partisanship Awards.” Ironically, Justice Scalia was the most “activist” Supreme Court justice. Sunstein and Miles, “Depoliticizing Administrative Law,” 2206–07.

Other studies have revealed a similar:
Neil Vidmar, “The Psychology of Trial Judging,”
Current Directions in Psychological Science
20, no. 1 (2011): 60, doi: 10.1177/0963721410397283; C.K. Rowland and Bridget Jeffery Todd, “Where You Stand Depends on Who Sits: Platform Promises and Judicial Gatekeeping in the Federal District Courts,”
Journal of Politics
53, no. 1 (1995): 175–85. The judicial elections that are mandated in certain states—and justified largely on the grounds of ensuring that judges maintain fairness and objectivity—may, quite ironically, exacerbate these tendencies. A survey of about 6,000 criminal cases decided in state supreme courts across the country indicated that justices who are appointed show less rigid adherence to their preconceived notions about a case and a better ability to evaluate the facts in a manner that results in a correct decision under the law. Matias Iaryczower, Garrett Lewis, and Matthew Shum, “To Elect or to Appoint? Bias, Information, and Responsiveness of Bureaucrats and Politicians,”
Journal of Public Economics
97 (2013): 230–44, doi: 10.1016/j.jpubeco.2012.08.007; “Researchers Find Appointed Justices Outperform Elected Counterparts,” Feburary 22, 2013,
ScienceDaily
,
www.sciencedaily.com​/releases/2013/02​/130222121049.htm
.

And the closer it is to an election, the more it seems to matter whether you are appearing before an elected or an appointed judge. Carlos Berdejo and Noam M. Yuchtman, “Crime, Punishment and Politics: An Analysis of Political Cycles in Criminal Sentencing,”
Review of Economics and Statistics
95, no. 3 (2013): 741–56. In a study of Superior Court judges in Washington, while appointees exhibited general consistency, elected judges used their discretion to deviate upwards from sentencing guidelines 50 percent more often and handed down criminal sentences for serious offenses that were about 10 percent longer at the end of an election cycle, as compared with the beginning. Berdejo and Yuchtman, “Crime, Punishment and Politics,” 741. Even elected judges who were running unopposed were significantly affected by the political climate in the last three months before an election. Berdejo and Yuchtman, “Crime, Punishment and Politics.”

Nonpartisan elections do not appear to be a salve: when it comes to contentious issues, like the death penalty, state supreme court justices show a bias towards majority public opinion when there are targeted campaigns waged to influence judicial positions. Brandice Canes-Wrone, Tom S. Clark, and Jason P. Kelly, “Judicial Selection and Death Penalty Decisions,”
American Political Science Review
108, no. 1 (2014): 23–39. A judge may believe that he is being consistent and delivering sentences based purely on the facts before him, when he is really being subtly drawn away from uniformity and objectivity by his own attitudes and worldviews, amplified by salient and personally meaningful external events.

Of course, it is not just political:
Christina L. Boyd, Lee Epstein, and Andrew D. Martin, “Untangling the Causal Effects of Sex on Judging,”
American Journal of Political Science
54 (2010): 389–411; Jonathan P. Kastellec, “Racial Diversity and Judicial Influence on Appellate Courts,”
American Journal of Political Science
57 (2013): 167–83; Linda Greenhouse,
“Evolving Opinions; Heartfelt Words from the Rehnquist Court,”
New York Times
, July 6, 2013,
http://www.nytimes.com/​2003/07/06/weekinreview/​ideas-trends-evolving-opinions-heartfelt-words-from-the-rehnquist-court.html
.

Although she was forced to:
Sotomayor, “A Latina Judge's Voice,” 92.

Justice Scalia, in particular:
Dorothy J. Samuels, “Scalia's Gay Marriage Problem,”
New York Times
, March 15, 2013,
http://takingnote.​blogs.nytimes.com/​2013/03​/25/scalias-gay​-marriage-problem/?hp
.

But the fact is that no judge:
Obviously, one response to all of this is to constrain how personal differences between judges influence outcomes. You should not get a sentence that is twice as long because you happen to come before Judge X instead of Judge Y. That is not justice; that is luck. In this regard, a promising solution, taken up in the final chapter of this book, may be to reduce judicial discretion. That was the original impetus for the Federal Sentencing Guidelines, although they have been less than successful, in part because they are only advisory. United States v. Booker, 543 U.S. 220 (2005); Adam Liptak, “Harsher Sentencing Guidelines Can't Be Used for Old Offenses, Justices Say,”
New York Times
, June 10, 2013,
http://www.​nytimes.com/​2013/06/11​/us/politics/supreme-court​-divides-over-sentencing-guidelines.html
.

Researchers recently found that:
Adam N. Glynn and Maya Sen, “Identifying Judicial Empathy: Does Having Daughters Cause Judges to Rule for Women's Issues,”
American Journal of Political Science
(2014): 14, doi: 10.1111/ajps.12118. It is important to note that the study did not find the daughter effect with respect to criminal cases. Glynn and Sen, “Identifying Judicial Empathy,” 11. However, the researchers' focus on rape cases very likely distorted the data. Other work shows that gender-based commitments may take a backseat to more dominant
cultural predispositions (in particular, the degree to which someone is supportive of existing hierarchies in society) when it comes to views on rape cases. Kahan, “Culture, Cognition, and Consent.” More research is needed to sort out whether having daughters has an influence on how judges decide criminal cases with a gender angle.

The effect appears to be:
Glynn and Sen, “Identifying Judicial Empathy,” 14.

One theory is that having:
Glynn and Sen, “Identifying Judicial Empathy,” 15; Adam Liptak, “Another Factor Said to Sway Judges to Rule for Women's Rights: A Daughter,”
New York Times
, June 16, 2014,
http://www.nytimes.com/​2014/06/​17/us/judges-with-daughters-​more-often-rule-in-favor-of-womens-rights.html
.

White men, for instance:
Torres-Spelliscy et al., “Improving Judicial Diversity.” Indeed, even today, a number of state supreme courts are all white. Torres-Spelliscy et al., “Improving Judicial Diversity.” The fact that this is, nonetheless, the most varied judiciary we have ever enjoyed has deep implications and brings an added urgency to the diversification project. On this front, we might consider adopting proven diversity-enhancement measures from business and academia—like nominating commissions focused specifically on identifying minority judicial candidates—so that when you appear before a particular supreme court, at the state or federal level, you are at least getting a cross-section of viewpoints and commitments. Ciara Torres-Spelliscy et al., “Improving Judicial Diversity,” Brennan Center for Justice, 2010,
http://www.brennancenter.org/​publication/improving-​judicial-diversity
. Each justice may be biased, but if they are biased in different ways, that may encourage a more neutral outcome or, at least, make the influence of personal characteristics on judicial decision-making more obvious, which might, in turn, prompt other reforms aimed at providing more impartial justice.

What qualifies as rape:
Marital rape was not rape in many states for decades. “Feminist Philosophy of Law,” Stanford Encyclopedia of Philosophy, May 19, 2009,
http://plato.​stanford.edu/​entries/​feminism-law/
.

Yet the answers we have:
Susan Navarro Smelcer,
Supreme Court Justices: Demographic Characteristics, Professional Experience, and Legal Education
, 1789–2010, CRS Report R40802 (Washington, DC: Library of Congress, Congressional Research Service, April 9, 2010) 6–11, 30–31,
http://www.fas.org/​sgp/crs/misc/​R40802.pdf
.

The Supreme Court was pumping out:
Smelcer,
Supreme Court Justices
, 6–8.

So, even if you happen to:
Torres-Spelliscy et al., “Improving Judicial Diversity.” Were it not for their bias-enhancing effects, judicial elections might seem like a ready solution, but states in which citizens vote for judges do not yield more diverse judiciaries, likely, in part, because of redistricting efforts that reduce the influence of minority voters. Torres-Spelliscy et al., “Improving Judicial Diversity.”

As we've seen, our decisions:
Chris Guthrie, Jeffrey J. Rachlinski, and Andrew J. Wistrich, “Blinking on the Bench: How Judges Decide Cases,”
Cornell Law Review
93 (2007): 5.

You might suppose that a judge:
Guthrie, Rachlinski, and Wistrich, “Blinking on the Bench,” 5.

Like the rest of us:
Chris Guthrie, Jeffrey J. Rachlinski, and Andrew J. Wistrich, “Inside the Judicial Mind,”
Cornell Law Review
86 (2001): 780.

Unfortunately, these intuitive processes:
Guthrie, Rachlinski, and Wistrich, “Inside the Judicial Mind,” 780; Brite Englich, Thomas Mussweiler, and Frtiz Strack, “Playing Dice With Criminal Sentences: The Influence of Irrelevant Anchors on Experts' Judicial Decision Making,”
Personality and Social Psychology Bulletin
32 (2006): 197.

Consider the so-called anchoring effect:
Guthrie, Rachlinski, and Wistrich, “Blinking on the Bench,” 19; Amos Tversky and Daniel Kahneman, “Judgment Under Uncertainty: Heuristics and Biases,”
Science
185 (1974): 1124–31.

By the mid-1970s:
Tversky and Kahneman, “Judgment Under Uncertainty,” 1128; Guthrie, Rachlinski, and Wistrich, “Blinking on the Bench,” 20; Englich, Mussweiler, and Strack, “Playing Dice With Criminal Sentences,” 188–89.

Yet when researchers took up:
Guthrie, Rachlinski, and Wistrich, “Blinking on the Bench,” 20; Englich, Mussweiler, and Strack, “Playing Dice With Criminal Sentences,” 189.

Asked to sentence a hypothetical defendant:
Englich, Mussweiler, and Strack, “Playing Dice With Criminal Sentences,” 190–91.

Shockingly, even rolling a set of dice:
Englich, Mussweiler, and Strack, “Playing Dice With Criminal Sentences,” 194.

One of the things that was:
Englich, Mussweiler, and Strack, “Playing Dice With Criminal Sentences,” 197.

And while other research suggests:
Guthrie, Rachlinski, and Wistrich, “Inside the Judicial Mind,” 778; Englich, Mussweiler, and Strack, “Playing Dice With Criminal Sentences,” 193–94. In fact, highly experienced judges may mistakenly believe that they are less influenced by biasing factors. Englich, Mussweiler, and Strack, “Playing Dice With Criminal Sentences,” 194.