Is Judicial Neutrality Possible? A Response to Lawrence Solum

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5 Responses

  1. Darren Hutchinson says:

    I agree that Solum’s approach does not allow us to escape “bias.” Written sources of law are often ambiguous and subject to varying intepretations. Also, relying upon “widely shared” norms does not rid the system of bias because, as you point out, there are competing norms from which a judge can choose.

    I would add one additional point: the process of “defining” widely shared norms (or “traditions”) also allows for the operation of judicial preferences. For example, a judge can choose to define norms narrowly or broadly; often, history provides reasonable support for multiple ways of framing the relevant norm. The conflict in Michael H v Gerald D (do adulterous biological fathers have parental rights) illustrates this point.

  2. MJG says:

    To add to your point that judges are not actually neutral, even if their rhetoric appears to be is well supported by voting patterns. ward Farnsworth of BU did a study showing that, in non-unanimous criminal cases (i.e. non-easy ones), Justice Rehnquist voted for the government from 90-98% of the time while Justices like Breyer, Souter, Stevens and Ginsburg vote for the government between approximately 30-45% of the time. You can also throw in Thomas, Scalia, Kennedy, (to say nothing of Brennan, Marshall, Douglas, Burton, Reed or Harlan) and see fairly consistent patterns and tilts to voting.

    In other words, judges say one thing — and likely believe it to their cores that they are judging quite neutrally — but somehow their internalized ideology tends to lead them to find certain arguments more persuasive than others, or simply to favor certain types of parties.

  3. MJG says:

    The article I referenced, Signatures of Ideology, can be found here:

  4. Brian Leiter says:

    Jerome Frank did not hold anything like the view “that all law is ideology and politics.” In fact, none of the major Realists held that view. Frank thought the determining factor in judicial decision was the personality of the judge, in particular, the unconscious part of his mind. Most Realists rejected this view as portraying judicial decision as too idiosyncratic. The ‘majority’ view among the Realists–subscribed to, more or less, by Llewellyn, Oliphant, Green, Radin, Moore et al.–was that judges respond in predictable ways to “situation-types” (recurring factual patterns) based on identifiable non-legal norms, such as fairness, economic efficiency, and normal mercantile practice.