Should Judges Write & Speak Up About Racism (And Remain Ethical)?

Jeremy Fogel is the executive director of the Berkeley Judicial Institute at Berkeley Law School. He is a former federal and state court judge and was director of the Federal Judicial Center from 2011 to 2018. He. wrote this commentary recently. The words, “Equal Justice Under Law” are engraved over the main entrance to our Supreme Court, and since the founding of our nation judges and justices have sworn an oath to apply the law without regard to the characteristics or circumstances of people who appear before them. Yet our history is replete with examples of judicial practices to the contrary, such as limiting jury service to white men and refusing to permit or credit equally the testimony of women and non-white witnesses. And, while most such explicit forms of discrimination are behind us, our courts never have been immune to the effects of systemic inequalities in our society. The reaction to the killing of George Floyd by Minneapolis police officer Derek Chauvin, an incident preserved for all to see in a cellphone video, continues to have profound reverberations. In addition to generating nationwide protests and a remarkable shift in public attitudes about race and policing, the killing has called unprecedented attention to disparities within the criminal justice system and the deep lack of trust and confidence in that system among African Americans. One might have expected the courts, which after all adjudicate the cases that arise from that system, to remain above the fray. But earlier this month, several influential state supreme courts, including those of California, Texas and Washington, made formal statements both acknowledging and condemning the persistence and manifestations of systemic racism within their purview. Each of California’s seven justices made a personal pledge to examine and confront the impact of his or her own attitudes and behavior. The Texas Supreme Court emphasized the importance of reaching out proactively to and learning about the concerns of communities of color, and the nine justices of the Washington Supreme Court issued a unanimous statement stressing the importance of understanding and overcoming the effects of implicit bias. Approximately a dozen chief justices of other state supreme courts, representing both geographic and philosophical diversity, made similar statements in their leadership capacity. Critics have argued that these statements inappropriately involve the courts in political controversy and even could be viewed as impermissible comments on pending or impending cases. Some worry that the courts will favor African-American parties going forward as a way of proving that, in fact, they are not influenced by systemic racism. Having served as a trial court judge for 37 years and having taught and designed courses for judges on both ethics and decision-making for much of that time, I believe that these concerns, while not unexpected, are misplaced. An African-American judge whom I have known well for many years tells an instructive story. She was the first African-American judge to serve in her mostly white jurisdiction. As it happened, her courtroom staff—court reporter, bailiff and courtroom clerk—also were African-American. During one of her first criminal calendars, a young white defendant entered the courtroom, looked around, said nothing for several seconds and then asked for a continuance. The judge agreed, and at his next appearance, the defendant returned with an African-American lawyer. Systemic bias is fundamentally different from individual bias. Individuals within an inequitable system can act with the best of intentions and in complete good faith and still not negate or overcome the effects of systemic inequality. The only remarkable fact in my friend’s story is that the only white person in the room—and the person with the least power—was the defendant. The systemic bias illustrated by her example is that, at the time, in virtually every other courtroom, the races of the individuals would have been reversed, and few if any white people would have found the situation unusual. But imagine what an African-American defendant would have seen, thought and felt. Canon 2A of the Code of Conduct applicable to the federal and most state judiciaries provides judges with an express mandate to act in ways “that promote public confidence in the integrity and impartiality of the judiciary.” The courts and justices who have spoken up in response to the killing of George Floyd and its aftermath have made explicit reference to that responsibility. They have pointed out that, while the killing of Mr. Floyd was unusual in that it was filmed in real time, it was anything but an isolated incident. Backed by an abundance of empirical data, they have noted correctly that African Americans as a group receive more punitive treatment at virtually every stage of the criminal justice process, including stops, arrests, pretrial detentions, charging decisions and, if they are convicted, sentencing. They recognize that, while it represents only one part of a larger system, the judiciary has an obligation to look for specific, systemic steps it can take to address these disparities and that only by doing so can it earn and maintain the trust and confidence of all of the people it serves. None of the statements suggests that any judge should—or ethically could—decide any case in a way that is not fully supported by the evidence and the law. Nor does any statement ignore the fact—nor could it—that even disadvantaged individuals have free will and are responsible for the consequences of their actions. Nor do the justices minimize—nor should they—our society’s need for effective law enforcement and the significant, often life-threatening risks that our law enforcement professionals are asked to take. Instead, the authors of the statements have shown courageous leadership in urging all judges, including themselves, to revisit and remain open to revisiting regularly their own worldview and assumptions. By committing to personal and institutional self-examination, and more importantly by following through on that commitment in the months and years ahead, these courts will set down a meaningful marker for all of us as we seek a fairer and more just society

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