Recent surveys have shown that a disproportionate number of Americans believe there is a problem in our country with fairness of the judicial system. Of course, there are various was that this comes to light, but one of the most prolific is judicial bias. From juvenile courts all the way up, it has been a problem for years.

But what indicates judicial bias, what can judges actually do if they feel themselves being biased, and what can citizens do about the issue?  Looking back historically, you can see areas where the problem may have existed, which is a good indication of where it will pop up again.

So the question remains, does judicial bias exist, or is it something that we are making up, and if it exists, what can we do?

Judicial Bias

In his book “Mediating Dangerously – The Frontiers of Conflict Resolution,” Kenneth Cloke wrote about the idea of judicial bias:

[T]here is no such thing as genuine neutrality when it comes to conflict. Everyone has had conflict experiences that have shifted his or her perceptions, attitudes, and expectations, and it is precisely these experiences that give us the ability to empathize with the experiences of others. Nor are there any genuine neutrals in courts, including judges, CEO’s, managers, and human resources representatives, all of whom have biases and points of view, including the bias of wanting to protect the organization from being disrupted by conflict. Judges have the most intractable bias of all: the bias of believing they are without bias.

With a few life-changing court hearings coming up in the Supreme Court and around the world, there have been many think pieces and questions posed by the media. One of those questions is whether or not the personal beliefs of Supreme Court justices will come into play. The right to a fair and speedy trial is promised to us in the Constitution, after all, so that should certainly extend to the top.

Judicial bias occurs when a judge has a bias when making a ruling in a hearing in which he or she has a specific feeling or attitude toward a party that will hinder them from acting fairly. In this case, the judge is actually hindering the right to a fair trial. Typically, a judge will recuse him or herself if a bias occurs.

Can we prove judicial bias?

The problem is that we often cannot prove that judicial bias exists. Now, many legislatures and jurisdictions have allowed parties to seek disqualifications if it appears that there was judicial bias. One example is Title 28 U.S.C. § 455, which has provisions for when a federal judge is biased against a party, as well as when a reasonable, disinterested party would think he has a bias. However, that doesn’t necessarily mean that this is an easy thing to do. There are many cases where a judge might be biased, but that doesn’t mean that the “reasonable” person would think so.

There is another problem to consider as well: the duty to sit doctrine. Many judges, especially those who are “old school,” tend to follow this. They are basically obligated to stay on a case that they have been assigned to handle unless they are forced to step away.

Sensitive Subjects

In many careers we are instructed to go with our feelings and think with our hearts in order to reach the best possible choices. However, that isn’t something that people would tell judges to do. That doesn’t mean it doesn’t happen, however.

New research has shown that judges, especially Supreme Court justices, will actively pick out the cases with which they identify. In their report, Lee Epstein of the University of Southern California and two colleagues examined nearly 5,000 decisions in 516 Supreme Court free-speech cases that spanned the decades between 1953 to 2010 to determine whether there was any bias. When the Economist looked at the paper, they explained the political bias in a funny way:

For example, if the speaker seeking first amendment solace is a pro-lifer rankled by restrictions on protests near abortion clinics, his rights are very likely to be recognised by Justice Clarence Thomas, a conservative, but not by Justice Ruth Bader Ginsburg, a liberal (see Hill v Colorado). And if the speaker is a high-school kid holding up a banner reading “Bong Hits 4 Jesus” on a school trip, you can expect Justice Thomas to harumph while Justice Ginsburg rises to defend the student’s free-speech rights (see Morse v Frederick). Right-wing justices tend to uphold conservative speakers’ rights and rule against liberal litigants; liberal justices smile on their ideological friends and frown at their foes, too.

While it is funny to think about it in those terms, it has many people thinking about some of the other places that judges could have bias and if it has ever happened before. Many of these include cases where the jury is included in the bias.

Religion

Many of the cases that judges and juries hear go back to morality and our personal beliefs. Many of us are exposed to religion from an early age, and it would be foolish to think that judges would be able to separate, at least completely, their deeply ingrained beliefs from the law. Certainly, there might even be a place for it. In an article from the Journal of Law and Religion, a quote from a former judge puts it into perspective:

It’s funny. . .I think it [religion] has influenced me. I think it’s given me a set of values. . .you know, every once in a while a reading from the New or Old Testament kind of strikes you and you just wouldn’t hear it–or I wouldn’t–or read it if it weren’t for that. It causes you to pause a little bit and do a little self-examination. I think that’s healthy. So I think that does influence my perspective.

There have been several cases in the last few years in which lawyers claimed religious bias against their clients. In Tennessee, a judge found himself in hot water after forcing a man to change his baby’s name from Messiah to Martin after he determined that “The word ‘messiah’ is a title, and it’s a title that has only been earned by one person, and that one person is Jesus Christ.” The child’s parents were there to settle a few different issues, including the baby’s last name.

While not in court, a Texas judge, Carter Tinsley Schildknecht, was issued a public admonition because  of some comments she made, including “describing District Attorney Munk as a ‘New York Jew’ and by criticizing a prosecutor’s beard because it made him look like a ‘Muslim’.”

Gender

One of the biggest sources of bias may be gender. In many of the cases where gender bias was found, it results in decisions that are based upon preconceived notions of sexual roles rather than on fair and impartial appraisals of individual situations. However, many people don’t see this bias because they are operating on those same preconceived notions.

In fact, New Jersey Supreme Court Justice Alan B. Handler wrote “[N]ot everyone has a nose for discrimination, especially in its most subtle forms. We are coming to realize that people are products of cultural conditioning which frequently obscures recognition of social wrongs…Discrimination frequently goes uncorrected because it is undetected.”

So what can we do?

Unfortunately, the idea that we can take away bias is misguided, as it is almost always going to be there. Just like in any other profession, bad judges do exist, but as they are in a power position, it can be hard to find a lawyer willing to expose that. The National Center for State Courts suggests that one of the biggest things we can do is reduce the wear and tear on judges by shortening their hours, provide more feedback on their performances, and encourage the courts to stay vigilant.

Even more so, we need to provide bias training to judges, and maybe even encourage them to do some research into the facts if a case involves someone’s religion, for instance. Diversity training has gotten a bit of a bad name, but it really does serve a purpose, and the courtroom may be the next place that needs it.

Conclusion

Bias is a part of life, unfortunately. Truly, we can never really let go of our bias, but judges have a responsibility to acknowledge it and try to make a fair judgement despite it. Juries have a similar responsibility, especially when they are still in the selection process.

Resources

Primary

U.S. Government Publishing Office: 28 U.S.C. 455 – Disqualification of Justice, Judge, or Magistrate Judge

Justia: Castellano v. Linden Board of Education

Additional

Douglas Ginsburg: Originalism and Economic Analysis: Two Case Studies of Consistency and Coherence in Supreme Court Decision Making

Journal of Law and Religion: Beneath the Robe: The Role of Personal Values in Judicial Ethics

Kenneth Cloke: Mediating Dangerously – The Frontiers of Conflict Resolution

Economist: Playing Favorites

Religion Clause: Texas Judge Disciplined For Religious-Cultural Bias

Reuters: Tennessee Judge Cited For Ordering Baby’s Name Changed From Messiah

University of Southern California: Do Justices Defend the Speech They Hate? In-Group Bias, Opportunism, and the First Amendment

Women Law: Operating a Task Force on Gender Bias in the Courts

American Bar Association: Overcoming Judicial Bias

American Psychology Association: Can Jurors’ Religious Biases Affect Verdicts in Criminal Trials?

NCSC: Strategies to Reduce the Influence of Implicit Bias

William S. Boyd School of Law: Chief William ‘s Ghost: The Problematic Persistence of the Duty to Sit Doctrine

Noel Diem

Law Street contributor Noel Diem is an editor and aspiring author based in Reading, Pennsylvania. She is an alum of Albright College where she studied English and Secondary Education. In her spare time she enjoys traveling, theater, fashion, and literature. Contact Noel at staff@LawStreetMedia.com.

The post Judicial Bias: What’s Morality Got to do With It? appeared first on Law Street.

Judges are supposed to be the good guys, the gatekeepers of justice, and the people that we turn to make sure that justice is served. But sometimes judges deserve some judgment themselves. They act inappropriately and do really stupid stuff. So here are the top nine biggest WTF things judges have done in recent years.

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Anneliese Mahoney (@AMahoney8672) is Lead Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

Featured image courtesy of [Andy Pixel via Flickr]

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Top WTF Moments By Judges appeared first on Law Street.

A contentious court battle has left California teachers in need of a new tenure system, after the California Supreme Court ruled that the current model does not allow all students equal access to education.

Back in February, nine students sued the school system. The students argued that the process by which teachers receive tenure and the way teachers are distributed to schools created inequity in the education received by minority students with lower income status.

One of the first things the ruling  references is Brown v. Board of Education, a landmark case that stated all students must have equal opportunity and access to education under the 14th Amendment– specifically, the equal protection clause. The case looked at three facets of the system: the 2 year tenure track, firing process, and “last in, first out” policy that led to newest teachers automatically being laid off first– regardless of how effective they were. All of these policies were found to be unconstitutional.

Furthermore, the court argued the minority and low-income students were disproportionately affected by these policies.

So, what are the implications of this ruling?

1. Other states will see similar lawsuits

California is not the only state that has rules like these, so it’s only a matter of time before other states are faced with people challenging their tenure laws, as well. It will be interesting to see if all states rule the same way- in all likelihood, they will not. Some might say these kinds of tenure programs are not unconstitutional, which could lead to drastically different tenure models in each state. There is also the possibility that some groups will try to appeal rulings to the Supreme Court. That’s still pretty far off, though.

2. Unions may get more creative in protecting teachers

This ruling does not remove the possibility of a tenure system for teachers, but makes clear that the system currently in place is unconstitutional. California, and other states who want to be proactive, will need to reassess the ways they protect their teachers. For example, the track to tenure may need to take more time, the firing process may need to get simpler, and newer teachers might not automatically be the first to go during layoffs. Of course, this ruling did not provide any specific limitations or recommendations for what changes should be made, so that debate will have to take place in the legislature.

3. Not a “fix all” for the education system

Education reform advocates are cheering after this ruling, but it is important that we do not get ahead of ourselves. Getting rid of tenure alone is not going to change the bad schools in California, because there are astronomically large social and bureaucratic barriers that play a much bigger role than this tenure program. As Jesse Rothstein points out in the New York Times op-ed, getting rid of bad teachers and fully integrating students in the classroom are not mutually exclusive. Even with good teachers, issues like poverty and language barriers affect how effective teachers can be in classrooms. While the tenure system certainly impacted students by way of ineffective teachers- even the best teachers in the world will still have a hard time in the most difficult schools.

Whether you consider this a win for students or a loss for teachers, one thing is for certain: no one has the answers to come to a balanced solution. As Judge Treu notes in the final paragraph of his ruling, “It is not the function of this Court to dictate or even advise the legislature as to how to replace the Challenged statutes.” Until state lawmakers come up with a new system, balancing the interests of students and teachers, this ruling might not be a win for anyone.

[CNN] [Court Ruling] [New York Times]

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Molly Hogan (@molly_hogan13)

Featured image courtesy of [Colleen via Flickr]

Molly Hogan

Molly Hogan is a student at The George Washington University and formerly an intern at Law Street Media. Contact Molly at staff@LawStreetMedia.com.

The post Major Ruling in Education: California Must Change Tenure System appeared first on Law Street.