Judges fooling themselves

Judges and their reasoning ... Politics and precedent ... How judges use reasons as window dressing ... Tulkinghorn explores those extralegal criteria 

US associate law professor Joshua Fischman (who is also an economist and a mathematician) says: 

"For much of the last century, scholars have debated whether, and to what extent, law constrains judicial decisions. Rule skeptics - including many legal realists, critical legal scholars, and political scientists - have argued that legal rules are seldom determinate and that judges have substantial discretion to decide cases according to extralegal criteria."

Peter Friedman, another law asspro in the US, put it this way:  

"It is almost a cliche that judges reach personal (albeit contingent) decisions in cases after considering the evidence but before coming up with the legal rationalizations for those a priori decisions."

He refers to  US judge Richard Posner as saying: 

"A 'more plausible hypothesis' of judicial decision-making [is] that 'the judicial decision precedes the judicial opinion' than to suppose that ... the judge reasons [her] way through the drafting of [her] opinion and only then reaches [her] conclusion."

The primary protection against arbitrary judicial decision making is the duty to give reasons, but how genuine do they have to be?

Callinan: opened the door to suggestions ...When High Court Justice Ian Callinan retired in 2007 he fired a parting shot.

According to the Courier Mail, he "accused fellow judges of carrying "personal baggage" when handing down decisions"

He said: 

"When I was at the bar, I sometimes thought, and not just in constitutional cases, that judges were not always as candid about their real reasons for deciding a case as they might have been." 

He might have started thinking differently when he ascended the bench. 

Nonetheless, Callinan opens the door to suggestions that there can be "real reasons" and fake reasons.

The real reasons would be based on the judge's political ideology, or judicial self interest.

As for fake reasons, the law is riddled with with words that can be stretched all over the place. For example: public interest, unconscionable, just cause, just excuse, due process, good faith, mens rea, knowingly, equity, malice, proximate cause, foreseeability, discretion, and reasonable belief.

Silberman: judges can render anything ambiguousAs Justice Laurence Silberman, of the US Court of Appeals has said,

"Virtually any phrase can be rendered ambiguous if a judge tries hard enough." 

(See: Chevron - The Intersection of Law & Policy 58 George Washington Law Review, 1989-1990 at p.826.)

An individual judge may, or may not, be aware that he/she is covering up his/her own agenda with fake reasons.

In 2001 a US law professor, Gary Minda, gave an address at a symposium entitled Denial: Not Just A River In Egypt. 

Minda refers to the work of Duncan Kennedy who talks about to the "paradox of denial", which is ... 

"structured around a fundamental conflict between 'self knowledge' and 'self-deception'. This paradox is what permits Kennedy to claim that judges act in bad faith when they deny the ideology of their work. Kennedy explains that judges act in bad faith because at some conscience level they really know that what they are denying is the truth." 

Minda has also written a book entitled Boycott in America: how imagination and ideology shape the legal mind, which mentions US lawyer and judge Jerome Frank, who was more forgiving. Minda writes:

"Frank's concept of denial (repression) ... rendered judges innocent of the charge of bad faith, since they had, according to Frank, 'successfully fooled themselves' about their ideological role." 

Hope of CraigheadWhen a judge like Lord Hope of the UK Supreme Court says, as he recently did, on video that - 

"I don't believe that these so called political views have any weight with us at all we are looking to the right decision according to law ..." 

- was he denying what he knows to be true, or has he fooled himself? 

According to a US professor of business regulation Frank B. Cross, in Political Science And The New Legal Realism: A Case Of Unfortunate Interdisciplinary Ignorance (1997-1998): 

"Political scientists, such as Jeffrey Segal and Harold Spaeth, employ an 'attitudinal model' to predict decisions according to the political ideology of judges. The attitudinal model ascribes judicial decisions almost entirely to politics, not precedents... The key test of any model is its ability to predict accurately, and the attitudinal model does well here... According to Professor Spaeth, the model has been accurate 'on more than 9 out of 10 predictions of judicial behavior'. To my knowledge, no legal scholar has achieved a comparable record using the legal model." 

The recent decision of the High Court in the Malaysia Solution case raises a lot of questions about judges and politics.

The court, by a majority led by the Chief Justice, torpedoed the Malaysia solution.

The Prime Minister said: 

"The current Chief Justice of the High Court, His Honour Mr Justice (Robert) French, considered comparable legal questions when he was a judge of the Federal Court and made different decisions to the one that the High Court made yesterday.'' 

On the evening of Gillard's attack Attorney General Robert McClelland defended her, observing that, "A number of respected legal commentators have made a similar observation". 

The CJ's reasons varied from Justice Kiefel's reasons, which varied from the joint reasons of Justices Gummow, Hayne, Crennan and Bell.

Justice Heydon decided the case the other way and of course set out his own reasons.

In 2002, when he was a judge of the NSW Court of Appeal, Justice Heydon said [at page 55] that: 

"Parliamentary legislators can be voted from office, but it is less easy to stop or control judicial legislation if judicial legislators are sufficiently determined." 

Were the majority in the Malaysia solution case acting as legislators? Were their reasons just window dressing?

In 1942 the US Supreme Court formulated its substantial reasons in a case months after it had delivered its verdicts and months after most of the accused had been executed (see p. CRS 27). 

Stone CJ: found it difficult Later, one of the judges, Justice Douglas, was to say that while it was "easy to agree on the original per curiam [decision as to guilt] , we almost fell apart when it came time to write out the views" (i.e. reasons). 

Chief Justice Harlan Stone wrote to [Justice] Frankfurter on September 10, 1942 (most of the defendants had been executed on 8 August) revealing that he found it ...

"very difficult to support the government's construction of the articles [of war] ... it seem almost brutal to announce this ground of decision for the first time after six of the petitioners have been executed and it is too late for them to raise the question if in fact the articles as they construe them have been violated."

Happily the judges managed not to find anything too inconvenient.

That's how finding reasons works.