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 Empat
hy,” 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.
The source of the problem is no secret: Englich, Mussweiler, and Strack, “Playing Dice With Criminal Sentences,” 189.
It doesn’t help that the evidence: Englich, Mussweiler, and Strack, “Playing Dice With Criminal Sentences,” 189.
Judges are required, for example: Vidmar, “The Psychology of Trial Judging,” 59.
While that fact may make: Vidmar, “The Psychology of Trial Judging,” 59.
However, in two separate sets: Andrew J. Wistrich, Chris Guthrie, and Jeffrey J. Rachlinski, “Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding,” University of Pennsylvania Law Review 153 (2005): 1251–1345; Stephan Landsman and Richard F. Rakos, “A Preliminary Inquiry into the Effect of Potentially Biasing Information on Judges and Jurors in Civil Litigation,” Behavioral Sciences and the Law 12 (1994): 113–26; Vidmar, “The Psychology of Trial Judging,” 59.
A similar dynamic is at work: Englich, Mussweiler, and Strack, “Playing Dice With Criminal Sentences,” 188; Jeffrey J. Rachlinski et al., “Does Unconscious Racial Bias Affect Trial Judges?” Notre Dame Law Review 84 (2009): 1195, 1221; Vidmar, “The Psychology of Trial Judging,” 59.
The investigators turned their attention: The judges averaged 22.5 years of experience. Shai Danziger, Jonathan Levav, and Liora Avnaim-Pesso, “Extraneous Factors in Judicial Decisions,” Proceedings of the National Academy of Sciences 108, no. 17 (2010): http://www.pnas.org/content/108/17/6889.
Overall, these judges rejected: Danziger, Levav, and Avnaim-Pesso, “Extraneous Factors in Judicial Decisions,” 6889.
An analysis of more than: Danziger, Levav, and Avnaim-Pesso, “Extraneous Factors in Judicial Decisions,” 6889.
Moreover, factors like the severity: Danziger, Levav, and Avnaim-Pesso, “Extraneous Factors in Judicial Decisions,” 6890.
The study’s authors hypothesize: Danziger, Levav, and Avnaim-Pesso, “Extraneous Factors in Judicial Decisions,” 6889. The status quo enjoys an unfair advantage across many situations, especially when we face a difficult or complex decision. When we have doubt, we are inclined to stay the course, which can lead to erroneous decision-making and poor choices, whether that means sticking with your employer’s default retirement package or failing to overturn the death sentence of a defendant. Stephen Fleming, Charlotte Thomas, and Raymond Dolan, “Overcoming Status Quo Bias in the Human Brain,” Proceedings of the National Academy of Sciences (2009): 6005, 6007, http://www.pnas.org/content/107/13/6005.
Repeatedly making decisions taxes our: Danziger, Levav, and Avnaim-Pesso, “Extraneous Factors in Judicial Decisions,” 6889. Although the researchers didn’t look specifically at whether it was the influence of eating or simply taking a break that explained the pattern, it seems that the judges’ two daily food breaks had a restorative effect on their abilities to deviate from the norm. Danziger, Levav, and Avnaim-Pesso, “Extraneous Factors in Judicial Decisions,” 6889–92.
The two parole boards involved: Danziger, Levav, and Avnaim-Pesso, “Extraneous Factors in Judicial Decisions,” 6889. After concerns were raised that the pattern of results might be the result of prisoners without representation being seen at the end of sessions, the authors of the study reanalyzed their data and replicated their original results, with case order and the timing of the break continuing to be robust predictors of the judges’ decisions. Keren Weinshall-Margel and John Shapard, “Overlooked Factors in the Analysis of Parole Decisi
ons,” Proceedings of the National Academy of Sciences 108, no. 2 (2011), http://www.pnas.org/content/108/42/E833. The results also held up when the authors reran their analysis separating out rejections of parole from deferrals (both of which result in the prisoner staying locked up), which they had originally treated together. Shai Danziger, Jonathan Levav, and Liora Avnaim-Pesso, “Reply to Weinshall-Margel and Shapard: Extraneous Factors in Judicial Decisions Persist,” Proceedings of the National Academy of Sciences 108, no. 42, http://www.pnas.org/content/108/42/E834.
That’s one of the reasons mental depletion: John Tierney, “Do You Suffer from Decision Fatigue?” New York Times, August 17, 2011, http://www.nytimes.com/2011/08/21/magazine/do-you-suffer-from-decision-fatigue.html?pagewanted=print&_r=0.
And one of the most disheartening: Uri Simonsohn and Francesca Gino, “Daily Horizons: Evidence of Narrow Bracketing in Judgment From 10 Years of M.B.A. Admissions Interviews,” Psychological Science 24 (2013): 219-241.
In my Criminal Law course: “Drexel University School of Law Student Handbook: Academic Year 2013–2014,” http://drexel.edu/law/studentLife/studentAffairs/Student%20Handbook/.
Researchers have dubbed this: Simonsohn and Gino, “Daily Horizons,” 219.
According to this research: Simonsohn and Gino, “Daily Horizons,” 223.
As the legal theorist and appellate: Jerome Frank, Law and the Modern Mind (New York: Brentano’s, 1930), 104. At the same time, we must remember the complexity of the task at hand. It is not that judges are slaves to their backgrounds and at the total mercy of unappreciated elements in their situations. Guthrie, Rachlinski, and Wistrich, “Blinking on the Bench,” 29. Judges do engage in careful deliberation and, in certain circumstances, do appear able to counteract certain erroneous intuitions. Guthrie, Rachlinski, and Wistrich, “Blinking on the Bench,” 29. For instance, there is some evidence that judges are capable of overcoming hindsight bias when they are encouraged to engage in a deliberative process. Guthrie, Rachlinski, and Wistrich, “Blinking on the Bench,” 28. In one research study, judges asked to determine the constitutionality of a particular car search after being informed that the police had found damning criminal evidence in the trunk (the hindsight condition), were no more likely to find probable cause than judges who were presented with a comparable request for a telephonic warrant to search the same car not knowing what would be found inside (the foresight condition). Guthrie, Rachlinski, and Wistrich, “Blinking on the Bench,” 27. The authors of the study hypothesized that, in this special context, the Byzantine rule structures of the Fourth Amendment might have forced judges to deviate from their gut intuitions. Guthrie, Rachlinski, and Wistrich, “Blinking on the Bench,” 27.
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