This discussion considers assumptions about judges and judging and suggests that despite what is sometimes perceived as increasing diversity on the bench and in the legal profession, outsider decision makers’ membership of the jurisprudential community is still marked by ‘otherness’. The argument draws upon my ongoing interest in the law's concern with the concepts of ‘objectivity’, ‘neutrality’ and ‘perspective’. I argue that the legal system is inherently suspicious of ‘otherness’ and most specifically so when ‘others’ occupy positions of ‘judgement’. The consequence is to render decisions made by ‘otherised’ judges liable to attack for bias in a way that decisions made by insiders simply are not. The argument is illustrated by a review of a number of challenges made on the ground of ‘bias’ or recusal motions to judges whose failure to match the white Anglo hetero-normative standard of ‘the judge’ is seen as a limit on their ability to be ‘impartial’. The examples used range across many jurisdictions, f...

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Gender, race, bias and perspective: OR how otherness colours your judgment

This article examines the last ten years of the Rehnquist Court, which was divided evenly by the Court's highly controversial intervention in the 2000 presidential election, Bush v. Gore. I compare the Court's record before and after that decision both qualitatively and quantitatively, and argue that the Court shifted noticeably to the left, particularly in high-profile cases, after Bush v. Gore, as conservative Justices showed a greater willingness to side with their liberal colleagues to reach liberal results. I hypothesize that this may have reflected an effort, conscious or subconscious, to restore the Court's legitimacy by counteracting images of a partisan body divided along political lines. I also suggest that the same interest in restoring the legitimacy of the Court may have contributed to the Court's substantive emphasis on the values of the rule of law, which was particularly evident in the Court's enemy combatant decisions of 2004 (and for that matter, more recently, in the Court's decision on military tribunals in Hamdan v. Rumsfeld). This "liberal legacy" of Bush v. Gore illustrates one of the checking functions on judicial supremacy - namely the need to maintain the appearance (and reality) that law is distinct from politics. Whether the "Bush v. Gore effect" will continue with the Roberts Court remains to be seen.

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The Liberal Legacy of Bush v. Gore

Some have argued that US judges should act like umpires, neutral actors who call balls and strikes according to the law Though this is an appealing idea, it may have some troubling implications fo

Fairness has a face: neutrality and descriptive representation on courts

We examine the revelation of preferences of justices whose true ideologies are not known when entering the Court but gradually become apparent through their judicial decisions. In a 2-period president-Senate-Court game, we show that some new justices vote disingenuously and so move the perceived ideology of the overall Court closer to their ideally preferred outcome, which influences the selection of future justices. Justices will sometimes have an incentive to exaggerate the extremeness of their preferences and at other times will seek to appear more moderate. Systematic changes in judicial behavior can be predicted on the basis of the characteristics of the cases; the initial ideologies of the justices, the president, and the Senate; and the probabilities of retirement of the justices. These results have important implications for interpreting judicial voting behavior: particularly, it is not safe to infer changes in actual judicial preferences from changes in expression of judicial preferences.

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Strategic judicial preference revelation

We examine the revelation of preferences of justices whose true ideologies are not known at the moment of entering the Court but gradually become apparent through their judicial decisions. In the context of a two-period President-Senate-Court game – generalizing Moraski and Shipan (1999) – we show that: while moderate new justices always vote truthfully, more extreme new justices may vote disingenuously at the beginning of their tenures. By concealing their true ideologies, new justices move the perceived ideology of the overall Court closer to their ideally preferred outcome, which influences the selection of future justices. New justices will sometimes have an incentive to exaggerate the extremeness of their preferences, and at other times they will seek to appear more moderate. The manifestation of untruthful voting will depend on the characteristics of the cases, the initial ideologies of the justices, the President, and Senate, and the probabilities of retirement of the current justices.

Strategic Judicial Preference Revelation

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Sherrilyn A. Ifill

Papers

Do Appearances Matter? Judicial Impartiality and the Supreme Court in Bush v. Gore