The Justice Issue Lurking Behind the Bench - OZY | A Modern Media Company

The Justice Issue Lurking Behind the Bench

The Justice Issue Lurking Behind the Bench

By Meghan Walsh


Because the scales of justice need balancing even on the bench.

By Meghan Walsh

It was hardly more than 50 years ago that the first Black judge was appointed to a U.S. District Court. We like to think that the scales of justice are color-blind, but even when that comes up for debate in the news, we’re usually focused on the racial aspects of arrests and convictions. It turns out there’s something noteworthy — other than those swanky judicial robes — going on behind the gavel.

The rulings of Black judges are 10 percent more likely to be overturned than those of their white counterparts.

Maya Sen, a political science professor at Harvard, sifted through an arsenal of data on the personal characteristics of 1,500 federal district judges and their corresponding reversal rates on cases decided between 2000 and 2012. Controlling for partisanship, jurisdiction and qualifications — including American Bar Association ratings and experience — Sen found that for every 196 cases appealed, a Black judge would have 20 more overturned than a lighter-skinned colleague. That comes to 2,800 rulings over the 12 years.  

Granted, this may, to some degree, be a statistical thing, and it’s not to say that appellate judges are bigots. It’s been well documented that this bench tends to be more conservative, while judges of color lean liberal, particularly on civil rights and discrimination matters. “It’s very hard to disentangle race and politics,” Sen says. It’s also up to litigants to appeal, so it could be that lawyers are more eager to contest a ruling handed down by a minority justice, which further complicates things. (The various Circuit Courts of Appeal did not respond to requests for comment.)

And if racism is to blame, which can’t be proved, it’s likely subconscious. There’s a growing recognition of the subtle ways prejudice seeps into decision making, from when a teacher expels a 6-year-old to the moment a cop pulls the trigger. Appellate magistrates of all colors may have an implicit bias that taints how they perceive the competency of Black subordinates. Meanwhile, the more often Black judges are overturned the more likely that belief is to become self-affirming. “I doubt anyone is sitting in their chambers and thinking this came from a Black judge,” says Rebecca Gill, a political science professor at the University of Nevada, Las Vegas, “but that’s how implicit bias works,” she says, adding that it influences the decisions of “people who don’t see themselves as biased.”

Reversals are anything but inconsequential. They force judges to revisit old cases, while their everyday caseload keeps on filling the docket. Then, of course, there’s the reputation hit — good luck getting promoted with an armful of overturned verdicts. Maybe that explains why there are so few dark-skinned arbiters on the appeals bench. Since Jimmy Carter’s presidency there’s been a concerted push to appoint more women and minority judges, but Sen’s findings raise the question: What’s the point if their rulings don’t stand? And then what does this mean for dark-skinned lawyers? Defendants?


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