Document Type
Article
Publication Date
2019
Publisher
University of Florida Levin College of Law
Language
en-US
Abstract
The psychological dimensions of judicial impartiality is a topic of considerable interest, with a growing body of scholarship focused on the reasons judges often are unable to perceive their own biases.1 The attention is not on why judges intentionally downplay factors that can undermine their own objectivity, but rather on the empirical reasons that everyone, judges included, tend to be unaware of the impact of their own biases. This “bias blind spot,”2 a product of a series of unconscious cognitive and motivational factors, is at the center of the discussion, with even the Supreme Court making passing reference to the pernicious influence of unconscious psychological factors in its recent disqualification jurisprudence.3
Professor Robertson’s article, Judicial Impartiality in a Partisan Era, 4 makes a significant contribution to this topic by deftly integrating the psychology of judicial decision-making into the larger conversation about the partisan threat, real and perceived, to judicial impartiality. Her analysis emphasizes the psychological dimensions of identity theory, a field of study that explores how people behave based on the social groups to which they belong.5 As she explains, judicial identity is closely wrapped in the self-perception of impartiality, the foundational feature of the rule of law, so that any non-verifying feedback threatening that identity can be expected to produce “emotional distress and a tendency to employ cognitive strategies that discount or discredit such feedback.”6 The bias blind spot is one such cognitive response, which allows judges to maintain a belief in their own objectivity, even when there is evidence to the contrary.7 Partisanship, like all motivations, can do its work without any conscious awareness of its deleterious effects.
Professor Robertson also makes the compelling argument that recusal is a weak tool to protect against the appearance of judicial bias for a number of reasons, including the malleability of determining how a reasonable person might perceive the effects of a judge’s partisan leanings.9 As she states:
The appearance of impartiality, after all, is in the eye of the “reasonable” beholder—and as the public grows more partisan, views of judicial conduct will likewise split along party lines. . . . When the public is so polarized, it becomes extremely difficult to identify the view of a “reasonable” person. 10
Indeed, she notes that allegations of partisan bias may even do more harm than good by further undermining public confidence in an impartial judiciary.
Recommended Citation
Tigran W. Eldred,
Judicial Impartiality in an Empirical Era
,
70
Florida Law Review Forum
130
(2019).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/4152
Included in
Courts Commons, Law and Psychology Commons, Legal Ethics and Professional Responsibility Commons
