JURIST Guest Columnist Andreas Kuersten, Law Clerk for the US Court of Appeals for the Armed Forces (CAAF), discusses racial bias’ impact on black individuals, both in court and on the bench…

The personification of justice is a blindfolded woman holding a scale and a sword. She cannot see an individual’s wealth, social stature, education, or other personal attributes. Rather, in cases before her, she objectively weighs competing sums of evidence and, in line with how the scale tips, rightfully dispenses judgment.

This woman, however, is merely a representation of justice, not its actual incarnation. A torrent of studies over the years have exposed Lady Justice to be peeking out from under her blindfold, as ostensibly irrelevant qualities tip her scales one way or the other. Some of the most damning examinations have revealed the consistent impact of an individual’s race in regards to their experience with the American justice system, and the outcomes it dispenses. Black individuals, in particular, experience a different dispensing of justice than white counterparts. For example, on average, a black male has an increased likelihood that he will be incarcerated, and that he will face a longer prison sentence [report, PDF] than a white male convicted of a similar crime.

Yet, examinations of the interaction of race and the law have tended to focus on when minorities are subject to legal process, not their treatment when administering it. In a recent study [report, PDF], however, Professor Maya Sen of the John F. Kennedy School of Government at Harvard University turns attention towards how black judges’ rulings are treated when appealed. Sen engages this issue by looking at the rate at which the decisions of black federal district court judges are reversed by the federal appellate courts reviewing them, as compared to the reversal rate for their white colleagues.

Sen’s data consists of 1,054 federal district court judges, 945 of whom are white and 109 of whom are black — a fitting ratio given the substantially larger number of white federal district court judges than black. Each judge’s reversal rate was determined for the period from January 2000 to July 2012.

Across the aforementioned time span, Sen found that “[o]pinions written by black [district court] judges are more likely to be reversed on appeal, and the effect is robust.” More specifically, “an opinion written by a black judge may have on average an approximately 10-percentage-point greater chance of being reversed than an opinion written by a white judge.” Sen presents the difference in reversed cases between black and white judges as 2,800 over the roughly 12-year period examined in the study.” That is, if blacks were reversed at whites’ comparably lower rates, approximately 2,800 black-authored decisions would have been upheld “instead of having been reversed.” In terms of individual judges, “these results mean that each black judge on average had approximately 20 more cases reversed (out of an average of 196 cases appeals) than if he or she had been white.”

Of course, there are numerous potential intervening factors that might help account for this disparity in reversal rates. On average, black judges may: have their decisions appealed more often than white judges; have their decisions on certain reversal-prone issues (e.g. civil rights) appealed more often than white judges; not be as good as their white colleagues in terms of education and experience; be comparatively more liberal than white district court judges and appellate court panels (the latter of which tend to be centrist in political leaning due to the presence of multiple judges); or rule differently than their white counterparts on specific issues (e.g. civil rights), and thereby be more subject to reversal just on these.

Sen, however, controls for each of these possible influences, and none of them are shown to impart a meaningful effect on the frequency of black judge reversals. Ultimately, given that appellate court judges generally know the race of district court judges through personal and professional interactions, Sen points to what she believes to be the likely mechanism behind the disproportionate reversal rate: “appeals panels somehow implicitly rely on the race of the lower-court judge in reaching decisions.” In light of the extensive research and findings regarding implicit bias against black individuals [report, PDF], such an explanation for the elevated reversal rate of the decisions of black judges would not be surprising.

This research has important implications for movements to diversify the federal and state judiciaries. Since President John F. Kennedy, US Presidents have endeavored to appoint minorities as federal judges, and similar initiatives have been undertaken at the state level. But, how much impact can this increased diversity have on the law if the decisions of minority judges are reversed at such an elevated rate?

Rather than demonstrating any futility in the advancement of minorities to judgeships, however, Sen’s data shows the importance of the complete permeation of the judicial structure, top to bottom, by diverse individuals. Her study presents preliminary data that the presence of black judges on appellate court panels might attenuate the high reversal rate for black district court judge decisions, particularly when black judges constitute the majority on such a panel. But, admittedly, “the low numbers of black judges on appeals courts” makes reliable results difficult to attain. Nevertheless, the elevation of minorities to all levels of the judiciary seems a more expedient way to combat implicit bias among judges rather than waiting for it to be rooted out from the neurological and societal soil from which it grows.

Sen’s study also illuminates interesting avenues for further research. Examinations of the reversal rates of other minority judges (Asians, Hispanics, women, etc.) would likely yield fascinating data. In addition, analyses of the qualitative aspects of opinions by black judges, and those of other minority and female judges, looking at whether they utilize different rhetorical styles or methods of legal reasoning than white, male judges would also be illuminating. Finally, studies focusing specifically on the reversed decisions of black judges and the reversing decisions of appellate courts could be useful in parsing out patterns contained therein, both in terms of the former’s content and the reasoning used by appellate court panels to reverse.

Sen’s research is an important step in the broad examination of implicit racial bias throughout the American legal system. She shows that even those in such exalted positions as judges are not free from this pernicious influence. Sen’s data, and the studies that are likely to develop from it, have the potential to make meaningful contributions to the ongoing effort to finally pull the blindfold all the way down over Lady Justice’s eyes.

Andreas Kuersten is a law clerk for the US Court of Appeals for the Armed Forces (“CAAF”), the country’s highest military court. His work has appeared in, among other forums, Forbes, Journal of Legal Analysis, and Journal of Law and the Biosciences. The views expressed herein are solely his and do not represent those of CAAF or the U.S. Government.

Suggested citation: Andreas Kuersten, Justice Unblinded, JURIST – Professional Commentary, July 16, 2016, http://jurist.org/hotline/2016/07/andreas-kuersten-justice-unblinded.php.