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United States Supreme Court Justice Clarence Thomas recently published an autobiography, entitled My Grandfather’s Son, and promoted the book with lengthy, public interviews on ABC. He is not the first sitting U.S. Supreme Court Justice to publish an autobiography, but I was surprised by the sense of disquiet I felt when thinking about a sitting judge writing openly about his life and views. I have tried to assess what it is, precisely, that makes me uncomfortable about judicial autobiography, and whether that discomfort is justified.
The main issue, for me, is the impact the autobiography of a sitting justice has on the perceived objectivity of that justice. An autobiography will likely reveal at least some of an individual’s beliefs, opinions, ideology and partisanship – and these in turn may give rise to the apprehension of bias. For example, in My Grandfather’s Son, Justice Thomas speaks disdainfully of leftist ideology and his experience in the country’s Northern States:
I'd grown up fearing the lynch mobs of the Ku Klux Klan; as an adult I was starting to wonder if I'd been afraid of the wrong white people all along — where I was being pursued not by bigots in white robes, but by left-wing zealots draped in flowing sanctimony.
But perhaps my perspective as a Canadian is skewed. After all, the fact that ideology plays a role in judicial decision–making is hardly novel to anyone with even a passing acquaintance with the U.S. Supreme Court. Political allegiances factor prominently into decisions about appointments. The Supreme Court is frequently split along party lines. Justice Thomas’ openness is at first glance surprising (certainly his comparison of left-wing "zealots" to Klu Klux Klan members might cause some consternation) but at the same time, it is not news that Justice Thomas is an outspoken critic of left-wing politics, or that he believes that affirmative action is an instrument of white individuals to continue the oppression of African Americans.
Uncomfortable as I am with the U.S.’s embrace of the idea that ideology has a place on the bench, perhaps there is a sense in which the U.S.’s system is a more forthright embrace of legal realism. I do believe that law is indeterminate, and that judges must always draw on some extra-legal considerations in resolving disputes. Individuality does play a role in decision-making. By openly declaring their politics, and in some situations, sharing their life stories, do U.S. judges strip away some of the mystery of the judiciary, leaving it more open (and perhaps accountable) to the public? Is it only right that the public should know something more about the identity and personality of unelected supreme court justices who hold such power?
That belief is, in part, the basis for the new judicial appointment process in Canada. It is an issue that has been discussed here at TheCourt.ca before: click here for Corey Wall’s assessment of our new appointment process and here for Benjamin Alarie’s review of his recent study (conducted with Andrew Green) on the influence of ideology on judges and how judges’ policy preferences change over time. But regardless of whether Canada has anything to fear from a more politicized court, I still cannot shake the feeling of unease I have about a sitting Supreme Court Justice coming out with his memoirs – even if those memoirs do end with his appointment to the bench, and thus leave out any discussion of his decisions on the bench. The perception of impartiality is as important as true impartiality (or as close as any human can get) to public confidence in the judicial system, and Justice Thomas comes across as anything but impartial in his autobiography, particularly in his bitter discussion of the battle over his appointment. The niggling question of financial gain is also hard to shake – openness, in this case, was worth $1.5 million to Justice Thomas.
7 Comments
Well, gosh, if the goal is to foster impartiality, isn't it useful to actually possess the relevant information about what things a Supreme Court justice might be personally biased about? Are you criticizing Justice Thomas because he has actually engaged in a form of full disclosure of his life, thought, and predispositions? In other fields disclosure is usually thought to help minimize conflicts of interest.
I understand the concern about the perception of impartiality being as important as impartiality but the perception of impartiality must be balanced with the public perception that our justices are genuine honest individuals that can be trusted with their public duties.
The measures judges partake in to be perceived as impartial may at times lead to the public perception that they are on a more fundamental level less trustworthy. Who trusts people that hide things about themselves on purpose? Is this not as damaging any perceived biases real or imaginary?
That's the question I'm asking: does this type of disclosure lead to a more fair and open system of justice. Perhaps it does. Certainly in the U.S. context, it's expected that justices will subscribe to certain ideologies and that their decisions will be guided by those ideologies. It does lead to the question, however, if those same justices can approach the questions of law with which they are presented with a completely open and balanced mind - and perhaps more importantly, if the public an perceive them to do so. The disclosure of bias can prevent conflicts of interest, but most of the time, if a judge declares a bias, one would expect them to remove him or herself from the case - not something we often see happen in the U.S. (nor am I suggesting that). I suppose the question then is whether by declaring a predisposition for certain policies is the same thing as admitting that one is biased and unable to be impartial.
The answer to your question in my opinion is no. The predisposition does not equate to an inability to be impartial. We all know that judges are human beings and will have these predispositions, so why delude ourselves or the public? Is it not their ability to overcome their biases that make them worthy of being professional judges? I think it is safe to say that the judicial culture in Canada could surely survive a little more disclosure from our judges, whether we want to go as far as the U.S. is another matter.
In response to Corey's assertion that we all know judges, as human beings, will have predispositions, I would say that simply because human nature "is", does not not mean behaviour "ought" to follow it. I look at the larger culture here, which is that the greater freedom for public persona allowed in the American system clearly is accompanied by openly admitted partisanship on the part of many judges at high levels, including the higher federal appeals circuits and (it seems especially) at the USSC. I am not supposing a causal relationship, just pointing out the correlation.
Such a relationship is absent or greatly muted in Canada, as in other similar Commonwealth jurisdictions as Britain, Australia, and South Africa. All these systems similarly carry the traditional cultural imperative in their legal communities that judges should speak through their judgments and little elsewhere.
Whether one prefers the American system or ours may depend, I suppose, on how biased one believes judges are, as a whole. I harbour the theory that the cultural pressure to remain silent about personal beliefs while sitting as a judge (and even after), as part of the larger apparatus of judicial independence, more strongly promotes impartial objectivity on the part of judges. I'm not so foolish as to say this guarantees impartial objectivity, merely that it is one factor that fosters it.
It stands to reason, on the other hand, that the freedom to speak openly about personal predispositions or biases fosters the pernicious idea that it's a little more acceptable to in fact hold those views, even promote those views, as a judge. And I have to expect that it creeps into actual judicial decision-making. One only need compare the trends in decision-making among justices of our Supreme Court (which we handily have a recent post and study about which to refer to) and the USSC to see the obvious differences in acceptable, even institutionalized, holding of judicial predispositions.
To be a bit combative my dear Rumor,
It seems that one of us prefers to be lied to so that we can easily believe in ideals, where as one of us has an ideal about not being lied to.
Look at what has happened to objectivity in the world of journalism. I am amused that a lesson Thompson, Mailer, and Wolfe all taught us sometime ago and is daily reinforced by the circus that is MSM gets so easily lost on the legal world. Perhaps, in an era of judicial conservatism and formalist approaches to the law defending the sanctity of judicial objectivity would make sense in the same quaint way it did when we still had newscasts free of advertisement.
The obvious differences between judicial predispositions of the USSC and SCC are due to cultural bias in relation to openess and candour. The pernicious idea is not freedom of speech for the judiciary but that we are somehow served by institutionalizing the obfuscation of those that sit in judgement over us.
Corey,
You say that "institutionalizing the obfuscation of those that sit in judgement over us" is a pernicious idea. Yet, judges speak in "judgment over us" only in that very way: by issuing judgments. Judgments therefore seem to be the pertinent judicial speech that we should and can examine. Indeed, the recent study linked at this site, which I referred to in my earlier comment, indicated a general lack of ideological bias reflected in judicial decision-making at the SCC, at least in recent decades. One could say that the system works. Why change it and, in doing so and taking the USA as an example, risk breaking it?