The Supreme Court talks about judicial bias. Sort of.

The law, lawyers, and the court.
June 8 2009 6:53 PM

The Great Caperton Caper

The Supreme Court talks about judicial bias. Kinda.

(Continued from Page 1)

Kennedy today openly worries that "there are instances when the introspection that often attends this process may reveal that what the judge had assumed to be a proper, controlling factor is not the real one at work." Sotomayor betrayed the same anxiety about undetected bias when she said in 2001, "I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I re-evaluate them and change as circumstances and cases before me requires."

Chief Justice John Roberts, writing on behalf of the four dissenters, is clear that he is also worried about the appearance of judicial bias and judicial integrity. His objection is principally to Kennedy's effort to create an "objective" standard for bias, which, he contends, "fails to provide clear, workable guidance for future cases." So Roberts spits out 40 questions left open by today's ruling (20 questions being for rank amateurs). Then Justice Antonin Scalia does him one better by quoting the Babylonian Talmud, Tractate Aboth, Chapter 5, Mishnah 22. (Scalia is clearly teaching bar mitzvah classes somewhere this year.) Scalia also acknowledges that judicial bias is a problem: "In the best of all possible worlds, should judges sometimes recuse even where the clear commands of our prior due process law do not require it? Undoubtedly." His dissent focuses on the fact that the court should not have stepped in to "correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernable rule."

If Justice Kennedy's majority opinion reads like a love letter to soon-to-be Justice Sotomayor, the Scalia and Roberts dissents also do nothing but support her. Both make a point of saying that painstaking inquiries into the chimera of judicial bias ultimately harm the judiciary as a whole. So, for instance, Roberts warns, "I believe that opening the door to recusal claims under the Due Process Clause, for an amorphous 'probability of bias,' will itself bring our judicial system into undeserved disrepute, and diminish the confidence of the American people in the fairness and integrity of their courts."

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So when Shelby Steele snorts in the Wall Street Journal today that "throughout her career Judge Sotomayor has demonstrated a Hispanic chauvinism so extreme that it sometimes crosses into outright claims of racial supremacy" (with no evidence beyond the Berkeley speech), is he not, as the chief justice openly frets, diminishing the confidence of the American people in the fairness of the courts? When her critics reduce Sotomayor's 18-year judicial career to a sound bite, does that not, as Roberts fears, undermine the "presumption of honesty and integrity in those serving as adjudicators."

Nobody is saying in Caperton—not the majority and not the dissenters—that judges are always perfectly neutral. Indeed, everyone agrees, although perhaps not with the effusiveness of Kennedy, that "experience and common sense" and other non-algebraic/geometric intellectual principles can sometimes influence judicial decision-making. Which means that everybody in Caperton is almost but not quite brave enough to say what Sonia Sotomayor has said aloud for years now: That being neutral is hard, perhaps ultimately impossible work and that the best judges are vigilant about trying to stay that way.

Sotomayor's Berkeley speech is nothing more than a case study for Kennedy's long meditation on the judicial craft and a check against Roberts' warning about trashing the judiciary with false claims of bias. If anything, her candor should guarantee her a seat at the high court as someone who has spent years grappling with an issue most judges would prefer to pretend away.

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