Today, I made an offhand remark about the way a legal realist might interpret a hypothetical judicial decision, though the "hypothetical" decision was essentially the ruling in the recent supreme court case Caperton v. Massey. As I put it, a legal realist might ignore the stated rationale for a decision and evaluate a ruling on the basis of sociological and psychological factors relating to specific judges or the community of judges as a class. Accordingly, a legal realist might not be all that surprised that a West Virginia judge who received campaign contributions from a coal company might be inclined to rule in the company's favor.
Technically, the Caperton case gets even better from a legal realist's perspective because the supreme court's decision in the case wasn't about the ruling in the case, but instead whether the West Virginia judge should have recused himself from hearing the case given his financial connections to the defendant. Whereas a legal positivist might see no connection between a judge's social circumstances, e.g. being supported by coal company largesse, a legal realist would find it impossible to overcome the sense that social and psychological factors influence, if not determine a judge's decisionmaking. Although less radical than classic legal realism, analysis from the New York Times suggesting that judges' political leanings might be guessed by their past voting record reflects a widely accepted method of assessing judicial decisions.
Interestingly, Chief Justice John Roberts offers a dissenting opinion in the Caperton case that criticizes the idea that the "probability of bias" found in socio-economic relationships could be used as a standard for judgment:
In any given case, there are a number of factors that could give rise to a “probability” or “appearance” of bias: friendship with a party or lawyer, prior employment experience, membership in clubs or associations, prior speeches and writings, religious affiliation, and countless other considerations. We have never held that the Due Process Clause requires recusal for any of these reasons, even though they could be viewed as presenting a “probability of bias.”
In doing so, Roberts rehearses one of the legal positivist's oldest moves: decisions are based on coherence with precedent rather than either socilogical or moral factors. If a decision can be shown to derive from legal precedent and will likely produce more binding precedent in the furture, the positivist argues, it deserves the status of law no matter what the moral value or social context might suggest.
Going forward, we will have to discuss how such decisions test the value of either realist or positivist approaches, whether it is fair to characterize Roberts as a positivist or even if non-discursive factors such as sociological context or psychological disposition play a role in judges' decisions.
I've always found it interesting that we as Americans are so opposed to bias in a case. Roberts comment basically sums up the fallacy behind the opposition to bias. That bias in itself is only bad for a case if its used. Its completely probable that a Judge could have varying biases in a case but still judge purely on precedence and legal interpretation.
ReplyDeleteOn the other hand, I think a great many legal scholars forget that bias can actually be a good thing in certain cases. I recently read an article about the possible differences between male and female judges. There was some discrepency in a few strip search cases if I remember right. In these cases a female judges opinion may help the case (the example im thinking of is one in which sotomayer stressed the delicacy of the situation to male judges).
If you take that a step further and address the key arguement that the law shouldnt need bias and should merely be interpreted by a judge. I think it goes back to the age old arguement of a judge's legislative power. Theres no way to win that arguement, you can only take a side.
In my personal opinion, the law is innately flawed in certain ways. Theres no way around that. Allowing judges to speed up the legislative process is not such a bad thing. Thats an extremely vague way to put it, but I hope i've made my point to some extent. Bias is a very interesting topic.
This is an excellent topic to begin our course with. Judicial bias to me is something that definitely needs to be voiced out more within our system of law. I think we as a society have a notion to elevate these supreme justices as beyond human comparison in regards to judgment. There is always going to be a opposing perception within the eye of society. Whether or not the bias was present, Justice Benjamin should have been aware of the repercussions of his refusal to recuse. Think about the other side of the coin. The CEO of this Coal Company, Don Blankenship, financed Justice Benjamin’s campaign which resulted to the removal of Justice Warren McGraw. Now if Mr. Blankenship’s contributions did not produce this outcome and Justice McGraw was still on the court of appeals, wouldn’t this affect the verdict as well? Who knows really? An outlook can never be set in stone in my view.
ReplyDeleteThe presence of bias in almost the entire socio-political realm of our country is evidence enough that this act is not uncommon in our history. Handfuls of people have become millionaires through their allegiances towards one another or escaped the wrath of the law as a benefit from a relationship with a member of law enforcement or legislation; in the case of Caperton v. Massey it simply justifies its own necessity; that judges need to be sociologically, which may include economically and poltically, in touch with the community their rulings effect to avoid regional discontent and possible constitutional violations. I cannot denounce either view (For/Against complete neutrality of judges) of this argument because I feel the answer to it can only disappoint and please both parties, this is because the overall achievement should be a checked balance between both parties; those who vote for neutrality and those who oppose.
ReplyDeleteIf I vote for neutrality of judges, then I would be depreciating the value of defense in a defendant’s character. In a case where the defense lies in using a defendant’s character as possible defenses in a given case which in a neutral case cannot legally be an influence on a neutral judge that legally cannot grant recusal for a probable victimless crime. For example, if judges were to be completely neutral then in a case regarding a high school student who shoplifts something from Wal-Mart would be judged in the same regards as to a known drug addict/thief who shoplifts from Wal-Mart.
If I vote for complete neutrality in judges and on their decision-making powers then a judge would be able to use past precedent whether documented or in his/her personal memoirs as justification. For any legal theory or ruling the judge submits within public view they can assimilate their personal views with actual law; for example in a case regarding a younger defendant who is accused of shoplifting an excessive amount of goods from Wal-Mart, in which the defendant is a known scholar and athlete in the judges local school district, then the judge can rule in favor of a punitive ruling as the property was returned and only the actual crime needed resolution and due to his prior knowledge of the defendants character the judge would be impelled to resist criminal punishment.
The psychological, sociological, religious and other matters are usually an integral part of a person’s mental outlook and therefore are bound to affect their decision making. Having connections with a party may be useful in providing deeper information about one side, but that shouldn’t make the judge biased. Wouldn’t their ability to be objective and have an ethical conduct be a prerequisite to recruiting a judge, rather than disqualifying a judge from a case whenever there’s a chance of being partial?
ReplyDelete