Judges are the axle on which the wheels of justice turn. They manage pre-trial
proceedings, mediate settlement conferences, rule on motions, conduct bench
trials, supervise jury trials, take guilty pleas, impose criminal sentences, and
resolve appeals. In the process, they find facts, make or apply law, and
exercise discretion. Judges wield enormous power and society therefore rightly
expects much of them. Judges must be fair minded, impartial, patient, wise,
efficient, and intelligent. They must set aside their politics and their
prejudices, make rational decisions, and follow the law.
But is it possible for judges to perform as we expect? The answer to this
question remains somewhat uncertain. Twenty years ago, Lawrence Baum concluded,
“Despite all the progress that scholars have made, progress that is accelerating
today, we are a long way from achieving truly satisfying explanations of
Much more research has been conducted since then, but
judicial behavior still remains something of a mystery. Some scholars argue that
judges behave rationally but make decisions that further their self-interest
That assertion, however, raises as many questions as it answers:
- What do judges see as their self-interest? Are fairness and impartiality
their primary goals?
- What incentives do judges really face?
- After all, they rarely lose their
positions and seldom get promoted.And even if judges primarily strive for
fairness and impartiality, do they achieve these goals?
This article surveys the empirical research that assesses whether judges live up
to the standards of their profession. The evidence accumulated to date reveals
that judges fall short in predictable ways.
- First, as the legal realists feared, judges’ personal characteristics
influence their decision making. Specifically, the research indicates that
when cases raise issues that are salient to judges’ personal
characteristics, they do not consistently put their characteristics aside.
- Second, judges overreact to mechanisms of accountability, such as
appellate review, retention, and promotion.
- Third, judges rely too heavily on intuitive ways of thinking that can be
- Fourth, in making decisions, judges sometimes rely on factors outside
the record, including inadmissible evidence, their emotional reactions, and
To be fair to judges, they
labor under a great deal of academic scrutiny. The existing research on judicial
decision making probably focuses too heavily on judicial failings. Scholars
conduct their research with an eye towards showing that judges are politically
motivated or biased. This is understandable, given the ideal of neutral judging
that society expects from judges, but the emphasis on deviations likely makes
judges seem worse than they are.
The research includes several studies in which
judges adhere to an ideal norm of neutrality, and we certainly include these in
our review. No studies really provide usable estimates of how many cases are
skewed by politics, prejudice, or other misjudgment, and the research does not
support a means of making a reasonable estimate. The circumstances under which
judges deviate from the norm are nevertheless worth exploring, not to make
judges look bad, but to identify potential ways they might improve. In reaching
our conclusions, we review a diverse array of both experimental and field
studies of judicial decision making.
We set aside judges’ autobiographies and
biographies, interviews of judges, careful parsing of individual opinions, and
judges’ own accounts of how they make decisions. Such undertakings can provide
valuable insights, but our focus lies on systematic empirical accounts of
judicial decision making. These include 4 archival studies of actual decisions
and experiments or simulations using hypothetical cases. Although most research
on judges emphasizes decisions of the US Supreme Court (especially since the
Second World War), our focus lies with the state courts, lower federal courts,
and a handful of international studies.
Although the US Supreme Court is
important, of course, it resolves few cases and represents only a tiny window
into the judicial decision-making process. Each of the studies we incorporate
into our analysis involves vastly more judges than the 39 people who have served
on the Supreme Court in the last 70 years. The focus on the Supreme Court also
tends to emphasize the role of politics in judging. Political influence is only
one way judges can fail to meet the demands of their roles. We discuss this
concern but expand upon it.
Political ideology is the most widely cited extralegal influence on judges. An
avalanche of research demonstrate that US Supreme Court justices make decisions
that align with their political attitudes. Federal court judges display similar
tendencies. A thorough review of this literature lies beyond the scope of our
inquiry here, and we focus on other aspects of judicial decision making.
literature on judicial political ideology has been reviewed at length elsewhere,
and even the leading exponents of political ideology now acknowledge that
focusing too narrowly on it provides an incomplete account of judicial behavior.
We nevertheless accept the conclusion that judges are political actors whose
beliefs influence their judgment. That said, we note that most of the research
here focuses on the Supreme Court and the highest state courts.
Studies of trial
court judges are less common, and notably, some show a more mixed portrait of
political influence at the trial court. Inasmuch as more than 80% of cases are
ultimately decided by the trial court alone, this result gives some comfort
that for most litigants their cases will not be decided largely by the politics
of the presiding judge. If judges are political actors, then their political
attitudes are apt to be most salient in cases with direct political
Cox & Miles found exactly that result in voting rights cases. They
concluded that the political party of the presiding judge has a large influence
on case outcomes among federal judges. These authors reported that Democratic
judges are more likely to find liability under Section 2 of the Voting Rights
Act (VRA) than their Republican counterparts. Section 2 cases involve claims
that redistricting patterns have undermined minority voting rights, which would
Furthermore, the presence of one Democrat or one African
American on the panel influences the voting patterns of the other two judges---a
pattern that researchers have identified in several other settings. Political
attitudes thus seem to influence judges when politics lies at the heart of a
Demographics and Judging The legal realists argued that a judge’s personal
characteristics influence how they decide cases . Contemporary research supports
and sharpens their point. As we describe below, demographic characteristics---e.g.,
religion, gender, race, and past employment---all influence judges. The
influence of demographics follows a predictable pattern: Judges tend to decide
cases that present issues salient to their demographic characteristic in ways
that favor their demographic profile.
Judges’ religious backgrounds influence their decision making. Jewish
and Catholic judges display more political liberal issues in decision making
than their Evangelical and Protestant counterparts, but this finding does not
discern whether religion produces different general political attitudes or
whether other demographic factors that correlate with religion are at play.
Other studies demonstrate that specific religious values lead judges to decide
certain kinds of cases differently.
For example, consistent with papal
teachings, Catholic judges (along with Evangelical judges) are more likely to
side against gay rights relative to other judges but are more moderate in
capital cases. Catholics and Evangelicals likewise have been shown to be harsher
on defendants in obscenity cases.
Religious orientation also influences judges
heavily in religious accommodation cases:
“Jewish judges vote heavily separationist, Catholics vote heavily accommodationist, and Protestants divide”.
A more recent study confirmed the result that Jewish judges and other judges who
follow less common faiths much more strongly favor accommodating minority
religious practices than Catholic and Protestant judges . In effect, religious
orientation matters when core aspects of the judges’ religion are at play in the
cases they decide.
After women began entering the ranks of the judiciary in appreciable
numbers, scholars began asking whether their gender would influence their
decisions on the bench. The results are equivocal.
Two early studies of
sentencing in urban trial courts found no differences between male and female
judges. More recent work replicated this finding. Other studies also found
little effect of gender among federal appellate judges. Overall, female judges
are not particularly more or less conviction prone than their male counterparts,
nor do they clearly favor or disfavor plaintiffs in civil cases. Gender matters
in cases in which gender itself is an issue, however.
Songer , for example,
found that the gender of federal appellate judges did not influence decisions in
obscenity or search-and-seizure cases, but female judges favored plaintiffs in
employment discrimination cases relative to their male counterparts. Differences
are also more likely to be found in cases involving so-called women’s issues or
in which gender is salient---mostly workplace discrimination and harassment
cases . In one notable study, the presence of a single female judge on a 7
three-judge panel in the United States Courts of Appeals increased the success
rate for female plaintiffs in sexual discrimination claims relative to all-male
The result is striking, as a single judge can easily be outvoted by the
other two. The finding suggests that the presence of a female judge adds a
different perspective that disproportionately alters the ultimate outcome. Even
in cases involving gender issues, however, studies do not uniformly report
differences between male and female judges. A recent related study expands the
notion that demographic characteristics like gender can influence judgment at a
The study found that in gender-related cases (such as sexual
harassment), a federal judge with one or more daughters is 7% more likely to
vote in favor of the female plaintiff compared with a judge with no daughters.
In cases not involving gender-related issues, however, judges with daughters do
not differ from their counterparts who have either no children or only male
children. Apparently, judges come to identify with their daughters’ interests.
As with gender, a judge’s race seems to matter most when race is a central
issue in the case. In the study by Cox & Miles (2008) that we discussed above,
the authors found that the effect of race on the outcome of Section 2 claims
under the VRA was much stronger than the effect of politics alone. Similarly,
African-American federal district judges more often rule favorably for
plaintiffs on pretrial motions in race or gender discrimination cases than white
judges . Another study also showed that white federal judges are less
sympathetic to employment discrimination claims than minority
judges---especially in pro se cases.
Yet another study concluded that plaintiffs
in racial harassment cases have a 42.2% success rate with African-American
judges, a 20.6% success rate with white judges, and a 15.6% success rate with
Hispanic judges. Moreover, in this study both white and African-American judges
were more likely to rule in favor of plaintiffs of their own race than for
plaintiffs of other races. Research examining the effect of judges’ race on
appellate panels in affirmative action cases revealed that African-American
judges support affirmative action plans 90% of the time compared with
non-African-American judges, who uphold such plans 80% of the time.
researchers also discovered that a judge’s race has a larger panel effect than a
judge’s ideology. Both results were consistent with an earlier study of
affirmative action cases . Findings concerning the effect of judges’ race on
sentencing outcomes, however, are mixed. One study that examined sentencing in
Pennsylvania from 1991 to 1994 found that African-American judges are more
likely to incarcerate offenders, but did not impose lengthier sentences than
their white counterparts.
Another study comparing felony sentences imposed by
African-American and white judges from 1976 to 1978 in Michigan found that white
judges were more likely to incarcerate than were African-American judges. As in
the previous study, however, this research found no effect of judge’s race on
sentence. A study of Latino judges in Texas similarly found that Latino judges
were only slightly more likely to impose harsher sentences than their non-Latino
Research by Abrams et al. provides the strongest support for
racial bias in judging, albeit using an indirect method. Using a large sample of
trial court data from Cook County, Illinois, these authors concluded that
African-American defendants were sentenced more harshly than white defendants.
The limitations of the data did not allow the authors to control for other
factors, but they were able to demonstrate that, despite random case assignment,
some judges exhibited a much bigger racial disparity than others. Their results
suggest that some judges treat defendants of different races differently, but
also that many judges do not.
As with other demographic variables, race seems to
matter most when the issue of race lies at the center of the case. Although most
of this research focuses on African-American judges, concluding that only
African-American judges are motivated by race would be a mistake.
For one thing,
the data reveal that only certain kinds of cases come out differently when they
are in front of African-American judges. Litigants might be presenting their
cases differently to an African-American judge than to a white judge.
Furthermore, the results might suggest that white judges react negatively to
voting rights or affirmative action claims, at least as much as they suggest
African-American judges react positively to such claims.
Age and experience are under-researched demographic factors. Fox & Van Sickel found that older judges were more apt to favor prosecutors in rulings in
criminal cases. Another study found that younger judges were less sympathetic to
plaintiffs in age discrimination cases than older judges. Indeed, the oldest
judges were roughly twice as likely as the youngest judges to vote for
plaintiffs in age discrimination cases. Although this study drew criticism on
methodological grounds it adds to the emerging idea that judges’ demographic
characteristics induce empathy for claims litigants make that are related to
Does prejudicial service as a prosecutor predispose a judge to rule in favor of
the defendant? Studies of the US Supreme Court suggest it. Previous experience,
however, might not be the kind of salient, personal characteristic that produces
a clear attitude toward certain types of cases. Former prosecutors could be
either more skeptical or more supportive of prosecuting attorneys who appear
The empirical evidence among the broader swath of state and federal
judges is, in fact, mixed. Most studies conclude that judges who were former
prosecutors were somewhat more likely to vote against the defendant. however,
found no relationship between prosecutorial background and judges’ decisions in
We have been hearing that the Indian Judiciary would need decades to clear its
backlog. The judicial system has become irrelevant for the common citizens, and
this is responsible for many ills plaguing our Nation, like disrespect for laws
The ease of doing business also suffers and the rule of law
cannot really prevail. The poor and marginalized are hit most in this state of
affairs. Supreme Court judge Justice A M Khanwilkar acknowledges that at least
90 percent people give up their claim to justice. He added that there was only
10 to 15 percent citizens who have access to the justice system in India.
A common belief is that we should have three to four times the number of judges.
Some people believe that this can change only if there are major judicial
reforms, or judges do not give adjournments or forgo their vacations. Some
advocate the drafting of better laws.
These would require changing the attitudes
of judges, lawyers and MPs and there is no sign of it happening. It would be
very good if all this happens, but so far there is no sign of it. Former Chief
Justice Thakur said that unless the sanctioned number of judges was increased by
over three times,- 70000 judges,- justice could not be delivered.
It appears to
have been accepted that a judicial system which can deliver timebound justice is
unlikely, and the fundamental right to Speedy Justice will be a mirage for
India. It is a common argument that UN standards suggest 50 judges per million
population, whereas India has less about 20. In 2017 if we assume a population
of 1250 million the sanctioned judges were 19.1 judges per million.
I decided to try and evaluate how many extra judges would be required to start
reducing judicial backlogs. The 20th Law Commission in its report no. 245
submitted in July 2014, after examining the issue from different perspectives
concluded that the Rate of Disposal per judge per year is the right method for
evaluating this. In simple terms it assumes that if 10 judges are disposing
10000 cases, 12 judges will dispose 12000 cases.
This may not be exactly correct
but is likely to be the correct position with a margin of error no more than
10%. I took the data reported by the Law Commission in its report no. 245, and
did a proper analysis of its data for 2002 to 2012 of fourteen states for the
subordinate courts it had taken. A careful analysis shows that if it had been
ensured that all sanctioned positions of judges were filled there would have
been no backlog by 2007. I decided to take a look at this issue by analyzing the
data given on the Supreme Court's website at in Courtnews for a twelve year
period from 2006 to 2017 (both years included)which has a quarterly report for
all the courts. This analysis has been done by adopting the same 'Rate of
Disposal' method accepted by the Law Commission.
The summary of this analysis is
tabulated below. This shows that the number of sanctioned judges is adequate and
if all the sanctioned judges were appointed mounting pendency and huge delays
would be history. The number of judges sanctioned in the three levels on 31
December 2017 was 31 in Supreme Court, 1079 in High Courts and 22704 in the
The actual number of judges appointed was 25, 676 and 17028
in the three levels. Thus the total number of sanctioned posts were 23814
whereas the working judges were only 17739! Filling about 6000 vacant positions
can make the judicial system deliver efficiently. The increase in pendency in
twelve years was about 56 lac cases whereas the disposal missed due to not
filling all sanctioned posts was nearly 661 lacs! The increase in cases each
year is less than 2.5 % of the average number of cases instituted each year,
whereas the average vacancy is about 21%! I also assumed that an average vacancy
upto 5% would have to be accepted in view of the overall inefficiency. If there
was no vacancy the three levels would have a no backlogs in 2014, 2012 and 2012
With 5% vacancy the backlogs would have been completely eliminated
by 2017, 2014 and 2014. There can be no excuse for keeping judicial positions
vacant while the nation suffers because of this neglect. The retirement date of
judges is well known. It would be possible to factor in vacancies due to
resignations, promotions and deaths by studying the past data.
The increase of
sanctioned positions can also be forecast early. The number of registered
advocates is about 1.3 million and over 60 thousand graduates emerge each year
from our law schools. Even if infrastructure is inadequate it would need to be
augmented by only about 20%. Even if we assume that there would be a capital
cost of setting up courtrooms this would not exceed about 3 crores per
courthouse which would mean about 18000 crores only. This is a simple solution
and can be implemented very easily.
This does not assume any change in the way
judges and lawyers function. It only assumes that the extra judges who fill the
vacancies will also dispose matters at the same rate as those who are already in
the system. While the sanctioned judicial positions are about 19.1 judges per
million the actual working strength is only 13.9 judges per million population.
Surely it can be ensured that this process can always be started six to twelve
months earlier and the Collegium recommendations are sent to the government
three months before the vacancy occurs. There should be a similar approach for
subordinate judges, of ensuring that the selection process is finished in
For the sake of the nation all those responsible must ensure that all
judicial appointments are made in a timely manner. An easy solution is
available. This analysis suggests that if a simple process of estimating
vacancies and ensuring zero vacancy is followed, the sanctioned strength is
adequate to dispose the inflow of cases and some backlog. Even if we assume that
there would be upto 5% vacancies, the backlogs would go down dramatically. If
this simple solution is implemented the problem will move towards a resolution.
This is a simple mechanical solution. If the queue of cases does not keep
getting longer, most delays would be reduced considerably.
If the queue is very small there is not much scope for delays. If a policy
decision were taken to ensure zero vacancy in the judicial positions, it appears
that the backlogs would become history and the fundamental right to speedy
justice would be actually implemented in our courts. The policy decision could
also be made a law with accountability fixed for who is responsible to ensure
The increase in Pendency in twelve years was about 56 lac cases whereas the
disposal missed due to not filling all sanctioned posts was nearly 661 lacs! The
increase in cases each year is less than 2.5 % of the average number of cases
instituted each year, whereas the average vacancy is about 21%! I also assumed
that an average vacancy upto 5% would have to be accepted in view of the overall
If there was no vacancy the three levels would have a no backlogs
in 2014, 2012 and 2012 respectively. With 5% vacancy the backlogs would have
been completely eliminated by 2017, 2014 and 2014. There can be no excuse for
keeping judicial positions vacant while the nation suffers because of this
neglect. The retirement date of judges is well known. It would be possible to
factor in vacancies due to resignations, promotions and deaths by studying the
past data. The increase of sanctioned positions can also be forecast early.
number of registered advocates is about 1.3 million and over 60 thousand
graduates emerge each year from our law schools. Even if infrastructure is
inadequate it would need to be augmented by only about 20%. Even if we assume
that there would be a capital cost of setting up courtrooms this would not
exceed about 3 crores per courthouse which would mean about 18000 crores only.
This is a simple solution and can be implemented very easily. This does not
assume any change in the way judges and lawyers function. It only assumes that
the extra judges who fill the vacancies will also dispose matters at the same
rate as those who are already in the system. While the sanctioned judicial
positions are about 19.1 judges per million the actual working strength is only
13.9 judges per million population.
Surely it can be ensured that this process
can always be started six to twelve months earlier and the Collegium
recommendations are sent to the government three months before the vacancy
There should be a similar approach for subordinate judges, of ensuring
that the selection process is finished in advance. For the sake of the nation
all those responsible must ensure that all judicial appointments are made in a
timely manner. An easy solution is available. This analysis suggests that if a
simple process of estimating vacancies and ensuring zero vacancy is followed,
the sanctioned strength is adequate to dispose the inflow of cases and some
backlog. Even if we assume that there would be upto 5% vacancies, the backlogs
would go down dramatically.
If this simple solution is implemented the problem
will move towards a resolution. This is a simple mechanical solution. If the
queue of cases does not keep getting longer, most delays would be reduced
considerably. If the queue is very small there is not much scope for delays. If
a policy decision were taken to ensure zero vacancy in the judicial positions,
it appears that the backlogs would become history and the fundamental right to
speedy justice would be actually implemented in our courts. The policy decision
could also be made a law with accountability fixed for who is responsible to
ensure its implementation.
Why juries work best
First and foremost, because despite the failings of individual jurors, juries
get it right most of the time. They make the right decisions on the evidence and
come to the right verdicts. Not every time, of course, they are not infallible –
how could they be, no humans are, not even judges, but they do get it right most
of the time.
The report from the Ministry of Justice published last week, the culmination of
18 months of meticulous research into over half a million cases heard in England
and Wales, shows juries are fair, efficient and effective. They convict almost
two-thirds of those they try, they convict more than they acquit in rape, they
do not exhibit any racial bias and they only fail to reach verdicts in less than
1% of cases. So juries do a good job and now we have the facts and figures to
prove it. Plainly that must be the first requirement of jury trial, whatever
else may be its value.
Think back to all the major miscarriages of justice of the last 50 years and
you'd be hard pressed to find one where the fault lay with the jury.
Overwhelmingly the miscarriages have been due to failures in other parts of the
system – by police, by experts, by witnesses or by lawyers. If the evidence put
before the jury is flawed, because it is tainted by impropriety, wrongly
interpreted, inaccurate or incomplete, then you will get a flawed verdict.
But that juries work well is not the only reason to support trial by jury.
Equally important is the fact that juries are one of the most democratic aspects
of the constitution; they are democracy in action every day of the week, not
just once every four or five years. There is no other part of the constitution
that is so open to the public, where ordinary people participate in decisions of
such immediate importance and wield real power. There are jurors settling the
fates of their fellow citizens in crown courts up and down the country every day
of the week, determining by their verdicts whether or not defendants are guilty
of the most serious crimes of violence and dishonesty such as murder, rape,
robbery and fraud.
Juries bring with them the freshness and insights of those who are new to the
system and have not become case-hardened or cynical. For anyone accused of
crime, the truthful defence can be no different from the lying one- I wasn't
there, I thought he was going to hit me, she consented, I thought I was being
honest, I didn't know the drugs were there.
There is a limit to the ways in
which you can be innocent. But if juries are not cynical, neither are they
naive, and it is a rare jury that cannot detect where the truth lies when faced
with the conflicting accounts of witnesses.
Because that is the advantage of a jury of 12: it reduces the chance that a
mistake of fact will be made. It may be that one or two on the jury don't
believe the witness or the defendant but that all 12 will be wrong is unlikely.
Those who argue for trial by judge will have to accept that judges make mistakes
and they are not infallible. But what if the judge makes a mistake of fact,
chooses to believe the wrong witness, one that only a minority of the jurors
would have believed? There is no remedy for that kind of mistake.
There is another powerful reason why trial by jury is necessary. In this age of
mass media, most people derive their knowledge of what goes on in a court from
what they read in the paper and see on television. But no newspaper report or TV
item can possibly convey all the detail and subtlety of the hours of evidence
given in court. An editing process is taking place: even the most impartial
reporter has to filter the evidence. If all that citizens know of the criminal
justice system is what they read in the papers and see on TV, they are going to
get a misleading impression of how it works and that misleading impression can
corrode their faith in the system.
You may wonder when you read the newspaper report of a case how a jury could
have arrived at its verdicts, but you will only have heard a fraction of the
evidence that the jury heard. When Frances Inglis and Kay Gilderdale were tried
for unlawfully killing their children, there was fierce public debate about the
merits of the prosecutions, but the only people who heard all the evidence were
the jurors, and the differing verdicts reflected the differing evidence in two
cases that were superficially similar.
By bringing ordinary citizens into the system and placing them at the very heart
of the decision-making process, trial by jury exposes the criminal justice
system to their scrutiny while ensuring they gain first-hand experience of how
that system works.
Trial by jury helps the criminal justice system reflect the
values and standards of the general public. It's vital for the health of the
criminal justice system that citizens participate in it and it is vital for
democracy that they do, which might explain why politicians are always seeking
to limit that participation.
At the start of every criminal trial, the jurors take an oath to try the
defendant "and give a true verdict according to the evidence". What last week's
report shows beyond reasonable doubt is that is exactly what juries do and, for
all our sakes, they must be allowed to carry on doing it.
- American Bar Association, Model Code of Judicial Conduct, 2011
- Judging the Judiciary by the Numbers: Empirical Research on Judges
Jeffrey J. Rachlinski Cornell Law School, [email protected] Andrew J. Wistrich U.S. District
Court, Central District of California
Written by: Syed Shabaz S,
Graduated of BA.LLB (5years) - Legal Counsel, DG Institute Financial Services, Sydney, New South Wales, Australia
I am available in WhatsApp Click