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Judges cannot be impartial; instead, they are ruled by their allegiances.
You can’t judge yourself.
This four-word tenant has constitutional roots, specifically in The Federalist Papers. In The Federalist Papers, No. 10, James Madison said:
No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.
At first glance, Madison gets a thumbs up and a pat on the back for this universal truth. But then Madison monkey-wrenches the whole thing with his “faction” warning. In warning of factions, Madison had this to say:
So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. [emphasis added]
So Madison offers up this paradox: You can’t judge yourself because of bias, but in a world of factions, everyone—all of mankind—is governed by “mutual animosities,” “unfriendly passions,” and “violent conflicts.”
Thus, man is personally biased, but mankind is factionally biased.
This means that those who judge—our courts, our judges, our justices—cannot be totally impartial; their allegiances and experiences are always in the backs of their minds.
This paradox sounds like a lot of high-brow civics. But calling it high-brow doesn’t make it any less real. Judicial bias—inherent in the U.S. legal engine—could be called a broken bolt, one that should wreck the whole machine. But the machine hasn't crashed. It keeps running, despite assertion after assertion of judicial bias:*
So “bias” can be the buzzkill of our judicial branch. This notwithstanding, the legal wheels keep grinding; lawyers and litigant show up despite the bias; and justice is largely served
But if there is bias, what’s the best way to make your arguments heard?
In a perfect world, a lawyer would win only on the merits or based only on precedent. But if factions and bias abound, facts and precedent are viewed through a decision-maker’s private lens. No longer is it enough to have good legal research. You also need good judicial research.
To help you begin your judicial research, Lexis Advance recently added Lexis Answers™ judge cards. This new feature compiles background facts and cases related directly to your judge—no search needed. Find cases related to thousands of U.S., state and local judges.
See which cases your judge cites to—and view the judge’s cases that other judges cite. Also review your judge’s noteworthy (seminal) cases and most recent cases. Explore how your judge views your issue currently and over time. Learn more about the newest Lexis Advance feature—Lexis Answers™ judge cards.
*We’re speaking of outright bias, not predisposition. To the latter, Steve Lubet, speaking to NPR, said:
[C]onservatism - being conservative socially or religiously or politically, would fall into the category of, say, predisposition, and not bias. It's something that the rules of ethics just cannot take into account, that people come to the bench with a life experience, and they tend to view the world in a particular way.