Are Judges Political Actors?

"In a formal ceremony of a Judicial Institution's new building, a senior Judge stood up, pointed at the statue of Lady Justice, and said, 'Never judge the Lady by her cover!'

Instantly, all the audience answered, "Yes, your honor!"

But a while after the audience was quiet, a boy shouted, 'Yeah, the Lady's eyes are closed, but her ears aren't!" said the Moon while carrying scales and sword, but not blindfolded, imitating the Greek goddess, Themis, after opening with Basmalah and Salaam.

"A judge’s role is to make decisions," the Moon went on. "People rightly expect judges to be excellent decision-makers. They expect judges to be objective, rational, accurate, impartial, deliberative and decisive. These are lofty ideals–necessarily so. Many judges walk past a statue of Lady Justice on their way to their courtroom, a personification of these ideals and a reminder of judicial systems’ moral force. The ability of judges to adhere to these ideals, to be good decision-makers, and to deliver fair judgments, is the measure of the public’s trust in their judiciary.

What motivates judges in their day-to-day role? Moreover, how does this affect their decision-making? It is not unreasonable to assume that judges are self-interested to some degree, yet the self-interested judge is largely an 'absent figure' in the literature on the judicial role, says Brian M. Barry. To maybe overgeneralise somewhat, judges may have career ambitions, they may feel a sense of achievement when they are promoted or praised, and they may enjoy the status that comes with their role. They may worry about their reputations and like to be liked and well respected. They may smart when their work is criticised in the media or by their colleagues on a higher court. They presumably prefer to be well paid, enjoy their leisure time to varying degrees and think about retirement. Aside from research on judges’ demographic characteristics, psychological effects and judicial politics, judicial scholars have considered how judges’ personal and professional motivations can affect their decision-making.

Judicial scholar Lawrence Baum remarks that amid ever-more prolific and sophisticated efforts to understand many aspects of the judicial function, particularly the role of politics in judicial decision-making, it is worth pausing to reflect that judges are but 'human decision makers.' Although an obvious point, it is nevertheless an important one, hinting at the importance of not disregarding the more mundane, everyday and intrinsic motivations that may affect judges and that may get lost in the clamour to better understand their role.

Brian M. Barry tells us about research that uncovers answers to a series of questions concerning judges. Is there empirical evidence that judges’ decision-making is systematically affected by how much (or how little) they value their time off the bench? Researchers have investigated this by assessing the productivity of judges and the quality of their decisions. Work-life balance, the pursuit of leisure and a judge’s workload are interconnected.

When judges’ workloads are manageable and appropriate, some judges may decide not to put more time and effort into deciding a case than other judges do because they value their leisure time more. The consequence may be that different judges may give different decisions, depending on how much effort they put in. Equally, a judge’s workload may be so overwhelming and unworkable as to affect their capacity to make the best possible judicial decisions.

How does variation in workload affect judges’ output and decision-making? When faced with high pressure on their caseload, judges preferred to reduce the number of judgments they wrote rather than compromise on their quality, as measured by the number of citations that decisions subsequently accrued.

Some researchers have presented tentative evidence that judges try to protect themselves from overwhelming caseloads by deciding certain types of cases in strategic ways.

Judges’ decisions are not the product of their innate personal characteristics such as their gender, their race or their age. The colour of a judge’s skin or their gender does not, of itself, affect how they think about and decide cases. Moreover, judges will seldom acknowledge that their views on specific legal issues–and by extension, their decisionmaking–are in any way connected to personal characteristics they happen to possess.

Societies rightly expect judges to make unbiased decisions, blind to the personal characteristics of litigants who appear before them. Justice systems portray their impartiality through statues of Lady Justice wearing a blindfold, or tenets carved into court buildings that proclaim, among other things, 'equal justice under law.' Judges’ professional codes of ethics, and rules of natural justice and due process, are replete with expressions of how judges must treat all litigants impartially and decide cases free from prejudice and bias. Despite these ideals, empirical studies regularly demonstrate differences and inconsistencies in judicial decision-making, apparently owing to particular characteristics of litigants, including gender, race or ethnicity or age.

Judges, of course, are human, says Brian Barry. They are social actors and political actors. They are pushed and pulled by internal and external forces. Psychological forces. Emotional forces. Institutional forces. Political forces. Self-interested forces as professionals. Implicit biases. Explicit prejudices.

Often, judges admirably resist, or at least strive to resist, some of the insidious consequences of these forces. Mindful of the lofty standards expected of them, judges aspire to perform the task of judging solely within the four corners of applicable law. Sometimes, judges may think it right and necessary that to ‘do justice’—a slippery and amorphous notion—they must acknowledge and bend to sensitive human, social or political concerns that guide them towards what they perceive to be a better, fairer judicial outcome. And then there are other occasions when judges may consciously or subconsciously succumb to the negative consequences of some of the internal and external forces mentioned.

Judges know that their decisions can be scrutinised, not just by the parties involved in the case, but by other audiences outside the courtroom. Judges may, therefore, bear in mind other institutions beyond the door of their court when they deliver their judgments.

Appellate courts, fellow judges in the broader judicial community, other branches of government, individual political actors, the public and the media may all, at one time or another, weigh on a judge’s mind. These other audiences can be categorised as external institutions that exert, to varying degrees, influence over judges when deciding particular cases. Judges, therefore, will perceive themselves as actors in a wider system of external, interrelated institutions. 

Then, what about artificial intelligence (AI) technologies, can it assist them in their decision-making in many jurisdictions? In a handful of courts, AI judges have supplanted human judges altogether. Online dispute resolution platforms and online courts have developed at an extraordinary pace, particularly throughout 2020, and are likely to become increasingly immersive experiences as technology develops, perhaps mimicking real-life courtrooms.

Artificial intelligence (AI) is a notoriously amorphous concept. In its simplest terms, AI refers to computers doing the sorts of things that minds can do. AI machines are aimed at approximating some aspect of human cognition—to behave in ways that would be called intelligent if a human were to behave in the same way. Many AI researchers argue that the goal is to develop intelligence that improves upon and betters the capacity of the human brain.

Technologists speak of different waves of AI: first-wave and second-wave AI systems. First-wave AI refers to rule-based systems that are preprogrammed by humans with complex decision trees or flow charts to undertake specific tasks. First-wave AI systems are dictated by human input towards a finite number of appropriate outcomes. Secondwave AI refers to systems that learn from vast swathes of data, and develop and improve upon their decision-making capabilities accordingly. While first-wave AI systems rely entirely on a finite set of rules that humans programme them with, second-wave AI systems have the capacity to use and analyse data in their own right. That said, they do not reason or process information in the same way humans do. Instead, they rely on machine learning.

The question of whether computers could or should replace human judges has been asked for many decades. However, it is only in the last ten years or so that this prospect has become a genuine possibility, and sometimes a reality. It is not just judges that increasingly rely on AI systems. Lawyers too employ AI systems that analyse data on past cases to analyse and predict likely outcomes in upcoming cases. This technology has developed hugely in recent years. Its rise has been prolific, with leading litigation lawyers suggesting that it may even be considered malpractice not to use this technology in the not-too-distant future.

To return to the judicial function, AI systems are increasingly common in courtrooms, and its reach is truly global. Thus far, most systems are designed to assist, rather than replace human judges, serving different functions in different contexts. For instance, some AI systems collate and present information about parties and some calculate and suggest sentences for convicted criminals based on the information about a case. Other systems act in a supervisory role, flagging to human judges when their proposed judgments are unusual or out of line with trends from past case data.

To take some examples, in February 2020 a Malaysian court used an AI system for the first time which recommended sentencing decisions in two drug possession cases by analysing trends in judgments from similar cases decided between 2014 and 2019.

Judges retained discretion to use the AI system’s recommendation or not. The Malaysian judiciary now uses the system to recommend sentencing decisions for drug possession and rape cases, and it is envisaged that it will soon be rolled out for awarding damages in road traffic accident personal injuries cases.

In 2017, Ohio judges started to employ a bespoke AI system to collate information for resolving juvenile court cases. The system provides a summary of a child’s situation, information about their educational situation, their living arrangements and their medical and drug use histories. It is envisaged that over time, as this AI system learns about more cases and case outcomes, it will be able to suggest decisions in later cases.

AI systems designed to assist judges have been integrated into many Chinese courts in the last few years. For example, in a bid to improve the consistency of decision-making, judges are now assisted by AI systems that give judges an 'abnormal judgment warning' if their decisions go against the grain of other similar decisions in the database.

In Mexico, the ‘Expertius’ system advises judges and clerks on whether a plaintiff is eligible or not for a pension.

Now back to the question, are the judges political actors? According to Keith Bybee, a research in America shows that the large majorities of the American public seem to believe that all judges are political actors—except when they are not. This ambivalent point of view fosters the suspicion that judges often do not mean what they say; and this suspicion, in turn, threatens to erode public confidence in court authority and eat away at the judiciary's standing as an impartial arbitrator of individual disputes.

Judges, of course, are human, says Brian Barry. They are social actors and political actors. They are pushed and pulled by internal and external forces. Psychological forces. Emotional forces. Institutional forces. Political forces. Self-interested forces as professionals. Implicit biases. Explicit prejudices.

Often, judges admirably resist, or at least strive to resist, some of the insidious consequences of these forces. Mindful of the lofty standards expected of them, judges aspire to perform the task of judging solely within the four corners of applicable law  [the four corners rule contract law, also known as the patrol evidence rule, stipulates that if two parties enter into a written agreement, they cannot use oral or implied agreements in court to contradict the terms of the written agreement. The term 'four corners' refers to the four corners of a document]. Sometimes, judges may think it right and necessary that to ‘do justice’—a slippery and amorphous notion—they must acknowledge and bend to sensitive human, social or political concerns that guide them towards what they perceive to be a better, fairer judicial outcome. And then there are other occasions when judges may consciously or subconsciously succumb to the negative consequences of some of the internal and external forces mentioned. And Allah knows best."

Though she was not blind, but why Lady Justice covered her eyes? However the Moon had to go, and she left while answering it by chanting,

I can turn it on, be a good machine

I can hold the weight of worlds, if that's what you need

Be your everything

I can do it, I can do it, I'll get through it

But I'm only human and I bleed when I fall down

I'm only human *)

Citations & References:
- Brian M. Barry, How Judges Judge: Empirical Insights Into Judicial Decision Making, 2021, Informa Law
- Keith Bybee, All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law, 2010, Stanford University Press
- Richard A. Posner, How Judges Think, 2008, Harvard University Press
- Cass R. Sunstein, [et al.], Are judges political? : An Empirical Analysis of the Federal Judiciary, 2006, The Brookings Institution
*) "Human" written by Martin Johnson & Christina Perri

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