Peter Hardin reported this week on an important decision regarding the deliberative process for judges.

The Massachusetts Supreme Judicial Court has ruled unanimously that judges cannot be required to disclose their thought processes about cases. The court rebuffed a prosecutor’s bid to force Judge Raymond B. Dougan (photo), accused of bias in favor of defendants, to turn over notes and other materials involved in his decision-making.

The decision, citing judicial independence as “one of the cornerstones of our constitutional democracy,” established a “judicial deliberative privilege” in Massachusetts, according to a Boston Globe article.

Although the decision was not the first to establish a “judicial deliberative privilege” in a state, it was notable for multiple reasons, legal analyst Andrew Cohen wrote in The Atlantic online:

“First, it comes at a time when judges all over the country are under political attack by partisans critical of particular rulings — or even of the right of courts to exist at all. Just this spring, remember, Republican presidential candidates were threatening to subpoena federal judges to Capitol Hill.

“The ruling also is significant because it is a rare example of judges explicitly defending the workings of the judiciary against overzealous intrusion by the executive branch. Finally, the ruling is interesting as a reminder that our judicial systems are designed to weed out bad decisions, or even biased ones, primarily by subjecting those rulings to layers of appeal.”

Justice Robert Cordy wrote in the decision, “We conclude that although holding judges accountable for acts of bias in contravention of the Code of Judicial Conduct is essential, it must be accomplished without violating the protection afforded the deliberative processes of judges fundamental to ensuring that they may act without fear or favor in exercising their constitutional responsibility to be both impartial and independent.”

“In so concluding,” he continued, “we formally recognize a judicial deliberative privilege that guards against intrusions into such processes — a protection we have implicitly understood as necessary to the finality, integrity, and quality of judicial decisions.”

Justice Cordy noted, “The judiciary’s independence from the other branches of government and from outside influences and extraneous concerns has been one of the cornerstones of our constitutional democracy, intended to ensure that judges will be free to decide cases on the law and the facts as their best judgment dictates, without fear or favor.’’

Judge Dougan, a municipal court judge, had sought to quash a subpoena from the state’s Commission on Judicial Conduct, according to an Associated Press report