Are judges objective?

By YEDIDIA STERN
November 29, 2017 16:15

On the link between ‘who’ and ‘what’ in judicial rulings

3 minute read.



Al Gore and George W. Bush

Al Gore and George W. Bush. (photo credit: REUTERS)

IS A judge’s identity relevant to the verdicts and rulings she hands down? Some believe that the judicial task is objective by its very nature, neutral and quasi-scientific. In their view, judges are professionals who have no personal preferences; it is their legal expertise that determines the outcome, and not their identity. Just as compliance with the rules of the game is not influenced by chess players’ personal backgrounds, so too judicial discretion is detached from judges’ religion, gender, nationality, ethnicity and social affiliations. This formalistic notion of the essence of the judge’s role simply does not hold water. The recent High Court ruling about the operation of stores in Tel Aviv on Shabbat was a perfect example of the correlation between each justice’s identity and his or her conclusion: the opinions of the two religious justices were appropriate to the typical preferences of the religious sector; their five secular colleagues ruled the other way. Similarly, when other courts heard this case, the judge’s identity as religious or secular was a giveaway as to the outcome. In the United States, federal judges are nominated by the president, and thus can be labeled, generally speaking, as Republican or Democratic judges. A recent study found that on controversial issues that divide the two parties, the court ruling depends on the identity of the judges who rule on the case. For example, if a woman files suit alleging sex-based discrimination on the job, she will win 75% of the time if all three judges on the Court of Appeals panel hearing the case are Democrats; but if all three are Republicans, she will win only 31% of the time. Here the “who” has a strong influence on the “what.”

The 2000 presidential election between Al Gore and George W. Bush hinged on the interpretation of a technical point of Florida election law. The US Supreme Court, the best in the world, was split five to four. All five justices whose opinions favored Bush were Re- publicans; three of the four whose opinions favored Gore were Democrats. If this is the situation that prevails when addressing seemingly technical matters, how much more pertinent do such ideological affiliations become when ruling on the balance between competing values that are a matter of bitter controversy for society at large, such as those frequently addressed by the Supreme Court in Jerusalem.

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