Addressing Bias Among Judges

The public’s trust of the judicial branch — state and federal — is fundamentally dependent on the perception that judges are unfailingly impartial. And that rests on a judge’s ability to anticipate and minimize the biases that are part of human nature. As Justice Benjamin Cardozo cautioned in his famous essay The Nature of the Judicial Process, “In the long run there is no guarantee of justice except the personality of the judge.”  

Almost 25 years ago, an American Bar Association survey found that most Americans believed our legal system to be the best in the world. Even so, only about half the respondents thought courts treated men and women equally, and almost 40 percent believed “that among racial or ethnic groups or between wealthy and poor people, the treatment is equal.” About 15 years later, a Pew survey indicated that perceptions regarding racial treatment had become more concerning: 43 percent of white respondents and 75 percent of Black respondents believed Black people were treated less fairly.  

Since then, not surprisingly, nationwide sentiment regarding courts as providers of equal justice has worsened, according to the National Center for State Courts — particularly the difference in perception by race or social group. 

“Personality,” to borrow Justice Cardozo’s observation, has a role in the public’s dismal view of the judiciary. One study found that a whopping 97 percent of judges consider themselves above average in their ability to avoid racial prejudice in decision-making. In contrast, studies also have found judges’ susceptibility to the influence of cognitive bias is no better than that of the general population.   

Cognitive biases include unconscious racial, gender, and ethnic biases, stereotypes, prejudices, discriminatory attitudes, and other preconceived notions, all of which can invade judicial decision-making. Biases strain the judiciary’s obligation to remain detached, objective decision-makers. Even a hint of bias can jeopardize public faith in the entire court system, to say nothing of a single ruling.  

Common cognitive biases that tend to affect judges include confirmation bias (giving credence to information that coincides with preexisting beliefs and devalues other information), blind spot bias (thinking others may be biased, but not yourself), overconfidence bias (attributing too much importance to one’s own beliefs and expertise), affinity bias (favoring people with similar backgrounds, characteristics, and interests), anchoring bias (relying too much on first impressions), and hindsight bias (perceiving past events as more obvious in retrospect). 

It should not be assumed that judges are aware of, let alone able to confront and correct, manifestations of cognitive bias in their decision-making. But their awareness is critical for judges and the judicial system, especially in today’s hyper-partisan climate. Every time a judge’s “personality” seeps into decision-making, justice crumbles.   

Bias training to date has received mixed reviews and achieved mixed results. Too few states offer training that is both engaging and effective. Often, judges need to be convinced to embrace training, and that can take persistence. But instead of dismissing training, we call for a renewed commitment to well-developed and sustained training for as long as a judge wears the black robe — not the typical perfunctory check-the-box, one-and-done efforts.  

To be effective, training should aim for strategies grounded in scientific research, not science reduced to acronyms or bumper-sticker sentiments. Training must be theoretical as well as practical and focus on neuroscience, bias literacy (including the major biases and related stressors of concern to the legal community), and techniques to interrupt bias and microaggressions (brief, subtle nonverbal or verbal behaviors rooted in unconscious bias). When it comes to disrupting cognitive biases, forewarned is forearmed. 

The ABA’s Judicial Division has been working to achieve fairness and stimulate the administration of justice through the Joint Committee on Fighting Implicit Bias in the Justice System. The committee gathers knowledgeable members of the bench and bar, scholars, and community groups to find ways to counteract biases, including training. For this purpose, the ABA published Enhancing Justice, Reducing Bias, directed to judges, lawyers, and courts. The book demystifies the intricacies of biases and offers ways to keep them in check.  

The author of the chapter “Combating Bias through Judicial Leadership” points out that training with only judges present “allows judges to know that they are not alone in having these experiences or in feeling uncomfortable in talking out loud about them.” She adds, “We must know and take charge of our flaws, including bias, a condition we share with those we serve.” 

Cultural sensitivity must be another training component. In a multicultural society like ours, lawyers and litigants expect judges to mitigate barriers that may impede people from different backgrounds from fully participating in the legal process. Just as important, cultural competency provides context that allows judges to understand the entire circumstances of the people and matters before them.  

Besides cultural sensitivity, training must involve self-examination and self-control of emotions. Though easier said than done, introspection leads to consciousness so that biases can be recognized and counteracted. Unless judges are proactive and make a conscious commitment to think critically and analytically about their own flaws, cognitive biases will continue to influence their decision-making. 

We favor mandatory training as part of continuing judicial education to ameliorate and eliminate cognitive bias. Vital elements include: 

• A sustained program over multiple hours or several sessions 
• A positive setting with ground rules to keep conversations civil and productive, in a blame-free and shame-free environment 
• Diverse instructors  
• Use of multiple pedagogical techniques (lectures, discussions, activities), including workshops to examine spontaneous verbal and nonverbal behaviors  
• Follow-up planning, with goal setting to ameliorate bad habits over time, along with self-directed learning and availability of confidential mentoring or coaching  

Justice is expected to be blind, but that only happens when judges think about and acknowledge their biases and cultural assumptions. The time is now to reconceptualize judicial training on cognitive biases and cultural sensitivity. With judicial impartiality, there can be no gray areas. 

Mary Smith is the president of the American Bar Association, vice chair at the VENG Group, and president and chair of the Caroline and Ora Smith Foundation.  

Michael B. Hyman is a justice on the Illinois Appellate Court and a former chair of the ABA Coalition on Racial and Ethnic Justice.  

Sarah E. Redfield is a professor at the University of New Hampshire School of Law and editor of Enhancing Justice: Reducing Bias and co-editor with Judge Bernice Donald (ret.) of Extending Justice: Strategies to Increase Inclusion and Reduce Bias.