Can Justice Truly Be Blind?
By MICHAEL C. DORF
|Wednesday, Sep. 15, 2004
Goliath fared poorly last week, on the field, on the court, and in the courts. First, major league baseball denied the New York Yankees' request that the Tampa Bay Devil Rays be deemed to have forfeited a game for which they arrived in New York too late; the Devil Rays had delayed leaving Florida until after Hurricane Frances had struck.
Then, tennis star Serena Williams lost her U.S. Open quarter-final match against Jennifer Capriati after the umpire appeared to make three erroneous calls that went against Williams.
And finally, formerly high-flying investment banker Frank Quattrone received an unusually long prison sentence of eighteen months, when the trial judge concluded that Quattrone had lied on the stand.
What do these three events have in common? In each instance, the "victim"--the Yankees, Williams, and Quattrone, respectively--claimed that the decisionmaker was acting out of bias against a prominent and successful person or entity. (Williams' father suggested that the decision also reflected racism, but the athlete herself charged only "anti-Serena" bias.)
"Nobody roots for Goliath," Wilt Chamberlain once said. But while it is to be expected that sports fans and the general public will pull for the underdog even to the point of relishing the defeat of the mighty, one hopes that umpires and judges will be impartial.
Unfortunately, if blind justice is truly our aspiration, the ideal may be unachievable in practice. In some circumstances, the law provides imperfect substitutes for the blindfold we see on our iconic representations of justice. And in other circumstances, blindness is affirmatively undesirable.
When True Blindness is Possible
In some situations, it is possible for a judge to be blind to the identity of the persons he judges. For example, when I administer examinations to my students at the end of a semester, the students submit exams identified only by numbers. I do not learn who wrote which answer until after I have turned in my grades.
Likewise, some government benefits can be administered in this fashion. Whenever the law requires an examination--for a driver's license, a civil service job, or bar membership, for example--the exams can be scored anonymously.
If the exam contains a subjective component, individual exam takers may still complain about inconsistent or otherwise questionable grading. But they will generally have no cause to complain about bias against individuals.
Imperfect Approximations of Blindness
In most contexts, however, it is not practical to withhold identifying information from the decisionmaker. Our legal system then tries to approximate what it cannot actually provide: blind justice.
Jury selection is an obvious example. Prospective jurors are screened for, among other things, personal connections to, or bias against, the parties to the case. Even people who do not know the parties personally but have extensive knowledge of the case from media reports are typically dismissed from service.
It didn't always work this way. Long ago, jurors were chosen from the locale in which the disputed events occurred precisely because they would be personally acquainted with the facts and the character of the parties.
As the ideal of impartiality took root, however, the function of the jury evolved. Today we think that while jurors do serve to reflect the community's values and conscience, at the same time, they must come to the presentation of evidence with an open mind.
Whatever the ideal, we cannot expect jurors to be perfectly impartial. Had George Steinbrenner gone to trial on his 1974 indictment for illegal campaign contributions and obstruction of justice (rather than pleading guilty, as he did), it might have been appropriate to exclude admitted Red Sox fans from the jury. But even controlling for that kind of deep-seated bias, it would have been impossible to prevent jurors from forming opinions of Steinbrenner's character during the course of the trial. Those inclined--as Steinbrenner suggests that baseball commissioner Bud Selig is--to resent the powerful, would have learned who Steinbrenner is, and could have acted on that knowledge.
Indeed, judges, no less than jurors, are susceptible of forming biases during the course of litigation. For example, in a 2001 ruling, the U.S. Court of Appeals for the D.C. Circuit criticized District Judge Thomas Pennfield Jackson for inappropriate public comments concerning the Microsoft antitrust litigation then pending in his courtroom. The appeals court quite properly disapproved of Judge Jackson's public disparagement of Microsoft, even though it appeared that he had developed his antipathy for the company on the basis of the evidence presented to him, rather than from prior or outside knowledge of the company that would have constituted disqualifying bias.
Granted, most judges would not be so rash as to tell New York Times reporters that a party in a case before them was like a mule that should be "whopped . . . upside the head," as Judge Jackson said of Microsoft. Yet it denies human nature to suggest that judges don't frequently, albeit inappropriately, form strong, even personal views about the litigants that appear before them.
Clear Law as Another Imperfect Substitute for Blindfolds
In addition to screening jurors, judges, and other decisionmakers for bias, the law sometimes uses clear directives as a means for ensuring impartiality. If the law leaves no room for interpretation, the theory goes, any attempt to bend the law to the advantage or disadvantage of particular parties will be obvious on its face, and immediately subject to reversal.
But there are at least three well-known difficulties with clarity as a mechanism for controlling the abuse of discretion.
First, even where the law is clear, the facts may not be. For example, the rules of tennis clearly specify when a ball is in play and when it is out of play. However, balls sometimes land at or near the edge of a line, requiring a judgment call either by a fallible line judge or umpire. Even if machines like the "Cyclops" are used to make the initial calls, the machines also make errors on occasion, calling for the superseding judgment of a human being. And where there is room for honest disagreement, there is also room for the exercise of bias.
Second, as any lawyer or legislator knows, perfect clarity in the law is impossible to obtain because one can never predict in advance all of the circumstances in which a rule may operate. For example, a seemingly categorical prohibition like "no vehicles in the park" may be construed to admit exceptions for ambulances, and even if one is inclined to read words strictly, definitional questions arise: Is a bicycle a vehicle? How about roller skates?
Third, even when clarity can be achieved, it may not be desirable. In an effort to constrain the discretion of judges and achieve equity across cases, the Federal Sentencing Guidelines provide relatively determinate sentencing ranges based on particular offenses and defendant history. Frank Quattrone and his lawyers complain (among other things) that the judge who sentenced him departed too far from the pattern of recent similar cases, such as that of Martha Stewart, who received a substantially shorter sentence--and thus abused his discretion. Typically, however, the Sentencing Guidelines are criticized for providing federal district judges with too little discretion to choose sentences that fit the unique circumstances of the offender. The critics--including a great many federal judges themselves--argue that the Sentencing Guidelines achieve predictability at the cost of justice.
Who Benefits From the Law's Imperfect Impartiality?
Thus we see that neither the law, nor any system of rules and standards governing any reasonably complex enterprise (like most professional sports), can achieve perfect impartiality. And even when we strongly suspect that a decisionmaker has acted out of bias, there may be reasons why nothing can be done about it. Most commonly, that's because the benefits of vesting discretion in an authoritative decisionmaker outweigh the costs associated with the possibility that that discretion will be misused.
Granted, systemic benefits may provide cold comfort to individuals or organizations that believe they have been the victims of biased decisionmaking. But at least where--as in the case of the Yankees, Williams, and Quattrone--the charge is bias against the powerful and successful, we need not shed too many tears.
For if there is a systematic bias in American sports and American justice, it is hardly a bias against the successful. Sports commentators take for granted the phenomenon of "superstar calls" on the field. Meanwhile, off the field--notwithstanding the uncanny success of the low-budget Oakland A's under the crafty stewardship of Billy Beane--at least in baseball the rules favor big-market, high-revenue teams like the Yankees.
More seriously, in court the quality of justice one receives often turns on the quality of the lawyer one can afford to hire. And this is true even--indeed, especially--with respect to the question of whether one ends up being sentenced to death.
To be sure, the fact that the Yankees, Williams and Quattrone are, on average, likely to be advantaged rather than disadvantaged by their privileged status, is no reason to deprive any of them of an impartial decisionmaker. But if that's what happened in these cases, it's at least rough justice.