July 09, 2020 Feature

Partisan Judges

Bias may be inevitable in both fact-finding and determinations of legal consequence and fairness.

by Robert E. Shapiro

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“The virtue of a judge,” said Socrates when on trial for his life, is to determine “whether the things I say are just or not.” What sounds like a commonplace surely is not. In the first instance, we ordinarily think of the role of a judge as a fact finder, figuring out the truth of what happened, which can be hard to know. But Socrates located the judge’s virtue in something even more important. It is one thing to know what took place, quite another to know what’s just or fair under the circumstances. Thus, every judge is confronted with a double problem. First, to learn the truth; then to know what to do about it.

The distinction between mere fact-finding and the broader issue of justice is underscored by our jury trial. The principal, though not exclusive, role of the jury is as fact finder. What happened? Who is telling the truth? Which account of the circumstances is the one preponderantly supported by the evidence? Is guilt proved beyond a reasonable doubt? The judge plays a larger role, which is to ensure that the outcome is fair. The judge serves this purpose throughout, in impaneling the jury, overseeing the trial, ruling on evidentiary objections, instructing the jury on the law, and deciding whether any jury verdict should be left to stand. The goal is not just to ensure that the jury gets the facts right, but to make certain, to the extent possible, that the outcome is a just one, or at least what the law, understood in its broadest terms, requires.

In practice, of course, the roles of judge and jury are often less distinct. We allow jury nullification, for example, and the judge can be fact finder too. But there is no question that to do her job well, the judge must know the procedural and substantive law, as the jury does not and cannot. What the law provides in a given circumstance is not always easy to know either, but learning and experience serve a critical role. A good judge investigates this carefully. A poor judge, not. But there is still more—call it a sense of justice. What’s fair or right under the circumstances? In effect, is the legal system doing right by this particular party? One reason we have a case and controversy requirement is to ensure that our decision-making is this concrete and individual. What’s necessary and proper under these circumstances?

In short, we want our judges to be good students of the law, its procedure, its substance, and its fundamental goals. The whole concept of judging is to consider as even-handedly as possible opposing viewpoints on the controversy and choose which seems right. The adversary system depends on a neutral arbiter to do so. Advocacy involves the advancing of facts by each side in support of one perspective over another. The legal system seeks to decide which of the approaches is the more compelling understanding from the standpoint of precedent, logic, and fairness. The judge is, in the end, the final, or near-final, guarantor of that process.

Illustration by Dave Klug

Illustration by Dave Klug

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