Unfair (22 page)

One of the things that was so surprising about this research was that expertise and experience did not act as a tonic. Participants who were experts in criminal law and who had dealt with cases similar to the hypotheticals were just as influenced by the irrelevant numbers as legal professionals with no such background.
And while other research suggests that expertise can, in certain circumstances, help judges avoid cognitive pitfalls that befall lay-people, in this case all it seemed to do was make judges feel more confident in their sentencing decisions.

The source of the problem is no secret: judges often have to decide questions under conditions of uncertainty. How does one know for sure where bail should be set, whether a photograph of the defendant is unfairly prejudicial, or when to declare a mistrial?
It doesn't help that the evidence judges rely on to answer these types of questions is frequently contradictory, thanks to an adversarial system in which the prosecution and the defense are tasked with marshaling the facts that support their respective positions. As a consequence, judges are susceptible to various false signals that seem to offer a way out. And the legal rules designed to keep judges on course often come up short.

Judges are required, for example, to disregard legally prejudicial and irrelevant facts, like a defendant's arrest, five years earlier, for snatching a purse.
While that fact may make the defendant seem more likely to have committed the burglary at issue in the present case, it does not go any distance toward proving his guilt.
However, in two separate sets of experiments, researchers found that real judges asked to decide a hypothetical case were often unable to put such information to the side—even when they were explicitly reminded that the facts they had learned were inadmissible.

A similar dynamic is at work when it comes to gender, race, class, and a host of other factors. Judges are well aware that none of these variables should influence decision-making; indeed, they regularly instruct jurors to ignore such differences when assessing
witnesses, defendants, and attorneys. But judges are part of a society in which all of these factors carry strong associations, from stereotypes about a woman's role in raising children to feelings about transgender people. And it's not a simple matter of taking off one's prejudices in the robing room.

If judges consistently carry biases, does that mean they are consistent
in
their biases? Interested in this question, a set of researchers decided to look at how judges make decisions over the course of the day.
The investigators turned their attention to eight experienced judges serving on two Israeli parole boards.

Overall, these judges rejected 64.2 percent of the requests made by prisoners. But that wasn't what the researchers were interested in: they wanted to know about the judges' decisions at different times of day. Did it matter whether a case appeared before the board in the early morning or right after a midday break? For an umpire judge, it wouldn't matter: a strike is a strike is a strike, no matter the location of the sun. But what about for these real judges?

An analysis of more than a thousand rulings showed that the judges were significantly more likely to grant prisoners parole at the beginning of the workday or after one of the two food breaks—ruling in favor of prisoners about 65 percent of the time—than they were at the end of the day or right before a break, when favorable rulings dropped almost to zero.
Moreover, factors like the severity of the crime and the amount of time the prisoner had already served—which should influence judges' decisions—tended not to have an impact on the rulings. The time of day seemed to be the important thing.

How could this be?

The study's authors hypothesize that as the day wears on, judges become mentally depleted, causing them to go the cognitively easy route and stick with the status quo: denying parole.
Repeatedly making decisions taxes our mental resources, and to
overcome the fatigue we may require rest or increased glucose—literally, food for thought.

What is particularly alarming is that this was not some laboratory experiment.
The two parole boards involved in the study process approximately 40 percent of all requests in Israel. And the judges had no idea of the nature or extent of their bias.
That's one of the reasons mental depletion can be so dangerous: often you won't feel depleted at all, so you won't see any reason to doubt your judgment.

Judges, of course, want to be consistent.
And one of the most disheartening recent findings is that this desire can actually lead us to be more biased. As a professor, I face this problem every semester when I sit down to grade exams.
In my Criminal Law course, for instance, I can give no more than 20 percent of the students an A or A–. Although, statistically, it is entirely possible that in a class of eighty I might get three A's in the first five exams, my expectation is that only one of the five will be an A, and that expectation threatens to alter how I grade (in this case, encouraging me to judge the strong exams at the beginning more harshly).
Researchers have dubbed this phenomenon “narrow bracketing”: those who must make a continuous flow of judgments assess subsets of these judgments in isolation (say, all of the exams graded before lunch, or all of the cases seen in one day) and avoid deviating too much from the expected distribution.
According to this research, although a judge should count on occasionally having five great candidates for parole in a row, after four successive grants a judge is less likely to grant the fifth prisoner's request simply because it differs from the pattern he expects (that is, only about two out of every three people being granted parole).

That a judge's decision in one case might influence his next decision, or that the time of day when the case is heard might have an impact on the outcome, is totally antithetical to our conception of a fair justice system. And it is vital that we continue working to
better understand the forces that shape judicial decision-making.
As the legal theorist and appellate judge Jerome Frank wrote all the way back in 1930, “If the law consists of the decisions of the judges and if those decisions are based on the judge's hunches, then the way in which the judge gets his hunches is the key to the judicial process. Whatever produces the judge's hunches makes the law.”

Judges, then, are not much like Chief Justice Roberts's beacons of objectivity, neutrality, and disinterest. But, in truth, neither are real umpires or referees.

While some social scientists have been looking at judicial decision-making, others have been investigating bias in referees.
The findings are staggeringly similar: across different sports, referees who appear committed to being neutral and objective end up making skewed calls and managing matches unfairly.
Tennis officials, for instance, are subject to perceptual bias akin to the influence of camera perspective on judges and jurors.
The spot where an umpire perceives a ball to land is shifted in the direction it is traveling, so he is more likely to call balls out that are actually in than to call balls in that are actually out. Like their judicial counterparts, referees are also swayed by factors that are meant to be irrelevant.
White umpires give white batters smaller strike zones than they give black batters, tae kwon do competitors dressed in red tend to be awarded more points than those in blue, and the taller of two soccer players involved in an ambiguous collision is more likely to be called for a foul.
In addition, as with judges who expect a certain distribution of parole denials and subconsciously alter their decisions accordingly, basketball refs are inclined to even out foul calls, and baseball umpires tend to reduce the strike zone with two-strike counts and expand it on three-ball counts.
Finally, like judges, referees are not always able to ignore the roar of the crowd: home-team biases are robust and pervasive across numerous sports, and the larger the crowd size, the greater the favoritism.

Many of us say that we want an umpire judge, but perhaps what we really want is a robot judge—and presumably not one programmed by humans. Flesh-and-blood adjudicators come with the same limited hardware we all carry in our brains—circuits designed for a Pleistocene past, processors too slow to keep up, and storage drives wanting in capacity.

All of this raises an interesting puzzle: as I've mentioned, judges (and referees, for that matter) rarely, if ever, feel like they are acting in a biased way.
Most would vigorously deny that they are being influenced by impermissible and irrelevant elements in their environments or that they are being driven by intuition rather than pure reason.
Indeed, most would feel quite confident that they are tuning out biasing factors and focusing on the pertinent details of the case. In light of the growing body of research that makes such rosy accounts of objectivity highly doubtful, how can judges be so blind?

The answer is that introspection and personal observation don't tell the whole story. An appellate judge sitting in her chambers with the text of the Constitution on her left, a pile of cases on her right, and the lower court record on her lap can feel quite sure that she is simply applying the letter of the law to the facts of the case. But
feeling
as if you are reading the text of the Fourth Amendment through unfiltered lenses and applying precedent without bias does not make it so.

Legal training, experience, and the rules and expectations of the job have the potential to help judges overcome certain biases, but they also reinforce a myth of impartiality. For example, part of the socialization of law school involves learning to deal with serious and sensitive legal issues—like when a sexual encounter qualifies as a rape—without becoming “emotional.” When students learn to discuss nonconsensual sex without getting upset, they are understood to be looking at matters objectively. But, of
course, cultivating a flat affect does little or nothing to eliminate the biases that a person might bring to the issue. And approaching something like sexual assault without emotion is neither objective nor fair and balanced. It only feels that way.

Similarly, over the last hundred years, most law professors have focused their classroom teaching on bringing structure and meaning to the numerous opinions and statutes students are required to absorb. And we assign reading from casebooks that offer up a vision of the law as a set of ordered rules that can be deduced, learned, and applied with consistency and predictability.
Certainly, precedent and statutory laws can act as powerful constraints on judges—and may even help eliminate or reduce certain biases—but we professors engage in a damaging charade when we pantomime a legal world in which clear instructions are implemented by dutiful technicians. That world does not exist, but it's what all judges have been trained to expect.

Once they are sitting on the bench, approaches to interpretation that seem to offer judges a way to ensure objectivity help keep the truth hidden.
Justice Antonin Scalia's textual originalism, for example, advises the judge to “look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters' extra-textually derived purposes and the desirability of the fair reading's anticipated consequences.”
A judge's decision, then, turns on the text, the text, and nothing but the text.
With seemingly no room for personal agendas or political distortions, it's the ideal method for the umpire judge.

But the truth is that a text is rarely confined to just one interpretation, and figuring out the proper historical meaning of a legal source is inherently subjective and conjectural.
The Fourth Amendment begins, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” So what is a “search”?
Is using a thermal-imaging device from across the street to see if
someone is using heat lamps to grow marijuana in his home a “search”?
Is placing a GPS tracking device on a car a “search”? Textual originalism does not dictate a clear answer; it just provides a cover of legitimacy to an inherently biased task.

In situations like this, a judge is free to attach the meaning that supports his preferred outcome and “find” the history that backs up that meaning, all the while feeling certain that it is the text that's doing all of the work.

While textual originalism makes it especially difficult for us to see and acknowledge the biases that judges bring to the table, all judges, whether in the mold of Justice Scalia or Justice Ginsburg, struggle to appreciate the blinders they wear as they go about their work.
This is particularly evident in the widespread practice of Supreme Court justices and clerks conducting their own research regarding facts in a case.

The common portrayal is that justices don't find facts; they receive them, applying the law to what was established at trial.
But members of the Court actually conduct a significant amount of “in-house” investigation into general questions about the world that are relevant to particular legal and policy issues.
Rather than simply relying on the lower court record and the briefs before them, the justices (or their clerks) regularly search Google or Westlaw or the Supreme Court library catalogue to determine the amount of carbon dioxide emissions in the air, whether late-term abortions tend to be pursued primarily by women below the poverty line, or whether most members of the public believe that self-defense is a fundamental right.
Indeed, in surveying the 120 most important opinions of the last ten years, one legal scholar found that a majority of cases included citations to one or more outside sources.

On first glance that seems rather unproblematic.
If a case comes down to whether fleeing from the police in a vehicle amounts to a “violent felony” under the Armed Career Criminal Act, what's wrong with a justice or clerk doing a little background reading to
get a better sense of the number of
injuries and deaths from police chases? In
United States v. Sykes
, both Justice Kennedy and Justice Thomas uncovered crash statistics that helped them conclude that vehicular flight is indeed a violent felony.
Isn't this precisely what we want when a justice lacks sufficient knowledge about a particular subject or when relevant data does not appear in the record or in the briefs?