In "Judging the Judges" (at Current Affairs), Brianna Rennix and Oren Rimni critique the role of judges in our system of criminal justice, and they are not impressed:
Judges are odd and uniquely frustrating creatures. Most have the demeanor of an especially hidebound DMV attendant, but their power and prestige gives them even more control over our day-to-day lives. Judges are often the last thing between you and imprisonment, deportation, homelessness, poverty, or the loss of your children. Their courts are tiny fiefdoms, and everyone who enters must cater to their whims.
Rennix and Rimni provide a brief history of how our judiciary has evolved:
How did we get to this point? What are judges actually for? Historically, judges were basically people who were good at dispute resolution at a time when state enforcement wasn’t really a thing. They needed to be able to come up with judgments that parties would actually follow, instead of just, say, murdering each other. This judicial role makes some kind of abstract sense. In less regulated times, judges were probably pretty useful practical agents of community order, and even sometimes of justice.
Here in the U.S., we no longer live in a time where it’s typical for vigilantism and blood-feuds to break out on a large scale if the judge doesn’t make a decision the parties will willingly accept...So what function do judges perform now? Rather than just making pronouncements on what would be equitable in a particular dispute, judges are—theoretically—supposed to faithfully apply codified law. We’ve made a policy shift over the years that strongly favors “predictability,” in place of “justice,” as the chief virtue of the legal system. It’s a well-accepted principle of the judicial craft that the important thing is to have a rule, rather than to necessarily have the right rule. (Having the right rule is merely a subsidiary concern, if it’s a concern at all.) We’d much rather have all “similar” cases or issues get decided the same way, instead of different ways, even if this leads to worse practical, real-world results overall for more individual people.
The "impartial" application of codified laws turns out to be problematic:
Evidence suggests that judges are not capable of being impartial at all. Factors as insidious as racial and class bias, as reasonable as background and knowledge, as mundane as when the judge last ate a meal, and as calculated as the judge’s ambitions for career advancement or political office, all clearly influence their choices. Numerous studies have shown the way many of these factors (not legal standards or arguments) lead to predictable patterns in rulings. And the reality is, most judges, and most people who closely study the activities of judges, know they aren’t impartial. When judges exalt impartiality as the highest virtue of legal adjudication, they are usually doing so disingenuously, or with significant psychological blinders raised. Judges who most vocally pretend to impartiality are often those who practice it the least.
Do we even want impartiality, the authors ask, or do we want justice (or at least our version of justice)?
Even if judges could be impartial, in theory, is that something that anyone even wants? Laws are inextricably linked with politics, so even the most neutral application of the law has a political dimension. And when people talk about who they want as a potential Justice it’s clear they base their preferences on who shares their opinion on issues like free speech or abortion. We rarely hear a conservative complain about Scalia’s judicial activism, or a liberal bemoan that RBG wasn’t impartial enough. This is because, deep in our core, we want partiality. Even where we have different conceptions of what “justice” means, we do actually want judges to advance justice rather than merely law.
Law, in practice, turns out to be a matter of what you can get away with:
The other problem with impartiality (besides being near impossible and possibly undesirable) is that a lot of seemingly “impartial” legal standards—like the famous “what would a reasonable person do” standard—are inherently subjective, so that it’s hard to say what an “impartial” application would even mean. The law is full of attempts to determine what “reasonable” behavior would be in a particular situation. It should shock no one (except lawyers) that people often have wildly divergent views of what “reasonableness” means in any given situation. For courts, the “reasonable person” standard has a disturbing tendency to align with whatever best suits the positions of those in power. Think of all of the police officers whose shootings of unarmed black people have been deemed “reasonable”—and then say you want a judicial system run by “reasonable” or “impartial” judges.
Rimni and Rennix argue that, from the standpoint of public policy, activism and legislative reforms are better options than "judicial activism":
The temptation to view judges as potential saviors often seems to sap progressive will for reform efforts through electoral and legislative channels. We currently have a legislature that is chronically unresponsive to genuine public concerns, and an ongoing concentration of de facto governing power in the president and his executive agencies. In this context, it’s understandable that people want to think of the judiciary as the last, best hope of American democracy. But even an optimally moral and courageous judiciary can usually only engage in obstructionist tactics, which a sufficiently determined executive will then maneuver around, unless the public finds some other way to make this politically inexpedient. The danger of reposing too much power in the judiciary, too, is amply illustrated by the Supreme Court’s Citizens United decision, where the Supreme Court declared unconstitutional the exact kinds of reforms that would have made the legislature more beholden to the real interests of the majority of their constituents—and which would thus have reduced the importance of the judicial deus ex machina. If we aspire to a form of democracy where there is an actual connection between the organizing efforts of the general public and the subsequent behavior of our elected officials, pushing for reforms to make our elected government more responsive to popular concerns is a better route than relying on distant elites to undo the mistakes of other elites. When you put power in the hands of unaccountable elites, you never know what they will do with it.
The authors close with some suggestions on improving the judiciary and the system it serves:
One, we should break any habit of looking to the law as a primary source of social change...changing the law is usually the middle- or end-point, rather than the starting-point, of on-the-ground changes in human social behavior.
Secondly, when we do seek to enact legal change, one of our concerns should be to craft legal standards with an optimum humane baseline, so that the role for judicial discretion, so far as possible, is forced in the direction of mercy. Attempting to make perfect legal rules for all cases is a futile exercise, but we can at least shut off some possibilities for bad exercises of discretion.
Basic morality remains the only proper standard by which to assess whether someone is a “good” judge or not. A good judge is someone who uses whatever discretion and whatever legal tools are at their disposal to reduce human suffering. They actively seek to understand the human impact of the cases in front of them. They are humble enough to admit what they don’t understand, and to solicit whatever information or advice they think will help improve their understanding, so that they can make a decision that they believe will be really helpful to people. They care about what happens to the parties in the case.
As a bonus, Rennix and Rimni have appended to their article a brief but highly entertaining section called "Some More Radical Solutions to the Judge Problem". The suggestions therein are threefold: "No More Judges," "Improve the Judges," and "The Same Judges, but We Respect Them Less". A couple of brief excerpts:
Aspiring judges have to forfeit all their personal wealth and complete a rigorous ten-year public service program...they will spend time in nursing homes, prisons, rehab centers, public schools, garbage collection routes, daycare centers, agricultural worksites, emergency rooms, the kitchens of fast-food restaurants, and the like. [Once appointed] they will live on a comfortable but modest salary.
Outdated markers of hierarchy, like forcing people to stand when the judge enters the courtroom, or address the judge as "Your Honor," should be eliminated...when hearing cases, the judges will sit at an ordinary table, on the same level as litigants, rather than on an elevated stand.
We might also recommend (as do Rennix and Rimni) that we abolish "the prolonged caging of human beings". Or perhaps, as part of improving our judges, we ought to require that every prospective judge spend a year in a cage—that might inspire some empathy and some ingenuity regarding alternatives to incarceration.
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