The Murky World of Judicial Bias: Is There a Clear Solution?

Posted on 05-22-2018 by
Tags: judicial bias , Lexis Advance , bias , judge cards

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.

“May It Please the Court ....” Evidence Of Judicial Bias

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:* 

  • Gene Quinn of IP Watchdog recently writes: “I personally believe the Supreme Court is, by and large, philosophically opposed to patents in an unfair and biased way. Frankly, it is rather astonishing that there is not near universal agreement on this point.”
  • Bryan A. Garner, writing in the ABA Journal, once observed: “A judge should be able to dip into your brief on any given page and find instant elucidation—with ease. You’re more likely to hold the judge’s interest. ... [P]eople who are cognitively busy are likely to make ‘selfish choices’ and ‘superficial judgments.’ They want things to be easy ....” [emphasis added]
  • Meera Jagannathan, in her article for Moneyish, writes: “When it comes to decision-making, trial court judges are just as influenced by gender bias as laypeople are, a new study suggests — and may actually be even more biased. The research ... casts reasonable doubt on the idea that judges’ subject-matter and decision-making expertise acts as a “buffer” against gender biases that affect ordinary people.”
  • In his blog Judicial Bias - A Variable That Is Often Overlooked in Family Law Litigation, Mark B. Baer starts a discussion around this observation: “EVERY judicial officer has their own personal biases in the family law court. We therefore try to determine whether the judge assigned to a particular case is biased for or against our client. .... This bias exists in no other area of law to this degree. No amount of bias elimination training can educate a judge to forget about their life experiences, assumptions, personal beliefs/views and biases. This issue alone makes family law litigation very unfair and inequitable.”
  • And when it comes to judicial ethics, Elizabeth Warren, writing for Politico, reminds everyone that: “The Code of Conduct for United States Judges requires judges to recuse themselves when certain potential conflicts arise, such as in cases in which the judge, the judge’s spouse or the judge’s minor children have a financial interest or in cases in which the judge has a “personal bias or prejudice” against or for any party in the case. But those rules don’t apply to Supreme Court justices.” [emphasis added]

The Solution: Not “No” Bias, But Know 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.

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