The Supreme Court has lost its ethical compass. Can it find one fast?

Ruth Marcus

The Washington Post

Originally published 23 Nov 22

The Supreme Court must get its ethics act together, and Chief Justice John G. Roberts Jr. needs to take the lead. After a string of embarrassments, the justices should finally subject themselves to the kind of rules that govern other federal judges and establish a standard for when to step aside from cases — one that is more stringent than simply leaving it up to the individual justice to decide.

Recent episodes are alarming and underscore the need for quick action to help restore confidence in the institution.

Last week, the Supreme Court wisely rebuffed an effort by Arizona GOP chair Kelli Ward to prevent the House Jan. 6 committee — the party in this case — from obtaining her phone records. The court’s brief order noted that Justice Clarence Thomas, along with Justice Samuel A. Alito Jr., would have sided with Ward.

Thomas’s involvement, though it didn’t affect the outcome of the dispute, is nothing short of outrageous. Federal law already requires judges, including Supreme Court justices, to step aside from involvement in any case in which their impartiality “might reasonably be questioned.”

Perhaps back in January, when he was the only justice to disagree when the court refused to grant former president Donald Trump’s bid to stop his records from being turned over to the Jan. 6 committee, Thomas didn’t realize the extent of his wife’s involvement with disputing the election results. (I’m being kind here: Ginni Thomas had signed a letter the previous month calling on House Republicans to expel Reps. Liz Cheney of Wyoming and Adam Kinzinger of Illinois from the House Republican Conference for participating in an “overtly partisan political persecution.”)

But here’s what we know now, and Justice Thomas does, too: The Jan 6. committee has subpoenaed and interviewed his wife. We — and he — know that she contacted 29 Arizona lawmakers, urging them to “fight back against fraud” and choose a “clean slate of electors” after the 2020 election.

Some recusal questions are close. Not this one. Did the chief justice urge Thomas to recuse? He should have. This will sound unthinkable, but if Roberts asked and Thomas refused, maybe it’s time the chief, or other justices, to publicly note their disagreement.

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One obvious step is to follow the ethics rules that apply to other federal judges, perhaps adapting them to the particular needs of the high court. That would send an important — and overdue — message that the justices are not a law unto themselves. It’s symbolic, but symbolism matters.

The info is here.

Anchoring Effect in Legal Decision-Making: A Meta-Analysis

Bystranowski, P., Janik, B., Próchnicki, M., 

& Skórska, P. 

(2021). Law and Human Behavior, 45(1), 1-23. 

http://dx.doi.org/10.1037/lhb0000438

Objective

We conducted a meta-analysis to examine whether numeric decision-making in law is susceptible to the effect of (possibly arbitrary) values present in the decision contexts (anchoring effect) and to investigate which factors might moderate this effect. 

Hypotheses

We predicted that the presence of numeric anchors would bias legal decision-makers’ judgment in the direction of the anchor value. We hypothesized that the effect size of anchoring would be moderated by several variables, which we grouped into three categories: methodological (type of stimuli; type of sample), psychological (standard vs. basic paradigm; anchor value; type of scale on which the participants assessed the target value), and legal (relevance of the anchor; type of the anchor; area of law to which the presented case belonged; presence of any salient numeric values other than the main anchor). 

Method

Twenty-nine studies (93 effect sizes; N = 8,549) met the inclusion criteria. We divided them into two groups, depending on whether they included a control group, and calculated the overall effect size using a random-effects Model with robust variance estimation. We assessed the influence of moderators using random effects metaregression. 

Results

The overall effect sizes of anchoring for studies with a control group (z = .27, 95% CI [.21, .33], d = .58, 95% CI [.44, .73]) and without a control group (z = .39, 95% CI [.31, .47], d = .91, 95% CI [.69, 1.12]) were both significant, although we provide some evidence of possible publication bias. We found preliminary evidence of a potential moderating effect of some legally relevant factors, such as legal expertise or the anchor relevance. 

Conclusions

Existing research indicates anchoring effects exist in legal contexts. The influence of anchors seems to depend on some situational factors, which paves the way for future research on countering the problematic effect in legal settings.

The research is here.

Judges as moral reasoners

Jeremy Waldron

International Journal of Constitutional Law

Published: 01 January 2009

Abstract

Debates about judicial authority―including debates about the desirability of judicial review of legislation—sometimes turn on the question of whether judges have superior skills when it comes to addressing what are, essentially, moral issues about rights. This paper considers the possibility that the answer may be “no,” not because judges are inept morally, but because the institutional setting in which they act and the role that they adopt both require them to address questions about rights in a particular legalistic way—indeed, in a way that, sometimes, makes it harder rather than easier for essential moral questions to be identified and addressed. Of course, what we want is for moral issues to be addressed, not as one would make a personal moral decision, but in the name of the whole society. Perhaps the judicial mode of addressing them satisfies that description, but there are other ways of satisfying it too—including legislative approaches, which proceed by identifying all the issues and all the opinions that might be relevant to a decision, rather than artificially limiting them in the way that courts do.

The article is here.

Mens rea ascription, expertise and outcome effects: Professional judges surveyed

Markus Kneer and Sacha Bourgeois-Gironde
Cognition
Volume 169, December 2017, Pages 139-146

Abstract

A coherent practice of mens rea (‘guilty mind’) ascription in criminal law presupposes a concept of mens rea which is insensitive to the moral valence of an action’s outcome. For instance, an assessment of whether an agent harmed another person intentionally should be unaffected by the severity of harm done. Ascriptions of intentionality made by laypeople, however, are subject to a strong outcome bias. As demonstrated by the Knobe effect, a knowingly incurred negative side effect is standardly judged intentional, whereas a positive side effect is not. We report the first empirical investigation into intentionality ascriptions made by professional judges, which finds (i) that professionals are sensitive to the moral valence of outcome type, and (ii) that the worse the outcome, the higher the propensity to ascribe intentionality. The data shows the intentionality ascriptions of professional judges to be inconsistent with the concept of mens rea supposedly at the foundation of criminal law.

Highlights

• The first paper to present empirical data regarding mens rea ascriptions of professional judges.

• Intentionality ascriptions of professional judges manifest the Knobe effect.

• Intentionality ascriptions of judges are also sensitive to severity of outcome.

The research is here.

How to Upgrade Judges with Machine Learning

by Tom Simonite
MIT Press
Originally posted March 6, 2017

Here is an excerpt:

The algorithm assigns defendants a risk score based on data pulled from records for their current case and their rap sheet, for example the offense they are suspected of, when and where they were arrested, and numbers and type of prior convictions. (The only demographic data it uses is age—not race.)

Kleinberg suggests that algorithms could be deployed to help judges without major disruption to the way they currently work in the form of a warning system that flags decisions highly likely to be wrong. Analysis of judges’ performance suggested they have a tendency to occasionally release people who are very likely to fail to show in court, or to commit crime while awaiting trial. An algorithm could catch many of those cases, says Kleinberg.

Richard Berk, a professor of criminology at the University of Pennsylvania, describes the study as “very good work,” and an example of a recent acceleration of interest in applying machine learning to improve criminal justice decisions. The idea has been explored for 20 years, but machine learning has become more powerful, and data to train it more available.

Berk recently tested a system with the Pennsylvania State Parole Board that advises on the risk a person will reoffend, and found evidence it reduced crime. The NBER study is important because it looks at how machine learning can be used pre-sentencing, an area that hasn’t been thoroughly explored, he says.

The article is here.

Editor's Note: I often wonder how much time until machine learning is applied to psychotherapy.

Rational judges, not extraneous factors in decisions

Tom Stafford
Mind Hacks
Originally published December 8, 2016

Here is an excerpt:

The main analysis works like this: we know that favourable rulings take longer than unfavourable ones (~7 mins vs ~5 mins), and we assume that judges are able to guess how long a case will take to rule on before they begin it (from clues like the thickness of the file, the types of request made, the representation the prisoner has and so on). Finally, we assume judges have a time limit in mind for each of the three sessions of the day, and will avoid starting cases which they estimate will overrun the time limit for the current session.

It turns out that this kind of rational time-management is sufficient to  generate the drops in favourable outcomes. How this occurs isn’t straightforward and interacts with a quirk of original author’s data presentation (specifically their graph shows the order number of cases when the number of cases in each session varied day to day – so, for example, it shows that the 12th case after a break is least likely to be judged favourably, but there wasn’t always a 12 case in each session. So sessions in which there were more unfavourable cases were more likely to contribute to this data point).

The article is here.

Emotional Judges and Unlucky Juveniles

Ozkan Eren and Naci Mocan
NBER Working Paper No. 22611
September 2016

Abstract

Employing the universe of juvenile court decisions in a U.S. state between 1996 and 2012, we

analyze the effects of emotional shocks associated with unexpected outcomes of football games

played by a prominent college team in the state. We investigate the behavior of judges, the

conduct of whom should, by law, be free of personal biases and emotions. We find that

unexpected losses increase disposition (sentence) lengths assigned by judges during the week

following the game. Unexpected wins, or losses that were expected to be close contests ex-ante,

have no impact. The effects of these emotional shocks are asymmetrically borne by black

defendants. We present evidence that the results are not influenced by defendant or attorney

behavior or by defendants’ economic background. Importantly, the results are driven by judges

who have received their bachelor’s degrees from the university with which the football team is

affiliated. Different falsification tests and a number of auxiliary analyses demonstrate the

robustness of the findings. These results provide evidence for the impact of emotions in one

domain on a behavior in a completely unrelated domain among a uniformly highly-educated

group of individuals (judges), with decisions involving high stakes (sentence lengths). They also

point to the existence of a subtle and previously-unnoticed capricious application of sentencing.

The paper is here.

Implicit bias is a challenge even for judges

Terry Carter
ABA Journal
Originally posted August 5, 2016

Judges are tasked with being the most impartial members of the legal profession. On Friday afternoon, more than 50 of them discussed how this isn’t so easy to do—and perhaps even impossible when it comes to implicit bias.

But working to overcome biases we don’t recognize is a job that is as necessary as it is worth doing.

“We view our job functions through the lens of our experiences, and all of us are impacted by biases and stereotypes and other cognitive functions that enable us to take shortcuts in what we do,” 6th U.S. Circuit Court of Appeals Judge Bernice B. Donald told a gathering of judges, state and federal, from around the country. Donald was on a panel for a program by the ABA’s Judicial Division, titled “Implicit Bias and De-Biasing Strategies: A Workshop for Judges and Lawyers,” at the association’s annual meeting in San Francisco.

The post is here.