Article. Abstract (h/t: Judicial Ethics Forum):
Judges
hold a prestigious place in our judicial system, and they earn double
the income of the average American household. How does the privileged
socioeconomic status of judges affect their decisions on the bench?
This article examines the ethical implications of what Ninth Circuit
Chief Judge Alex Kozinski recently called the “unselfconscious cultural
elitism” of judges. This elitism can manifest as implicit socioeconomic
bias.
Despite the attention paid to income inequality,
implicit bias research and judicial bias, no other scholar to date has
fully examined the ramifications of implicit socioeconomic bias on the
bench. The article explains that socioeconomic bias may be more obscure
than other forms of bias, but its impact on judicial decision-making
processes can create very real harm for disadvantaged populations. The
article reviews social science studies confirming that implicit bias can
be prevalent even in people who profess to hold no explicit prejudices.
Thus, even those judges who believe their wealthy backgrounds play no
role in their judicial deliberations may be influenced by implicit
socioeconomic bias. The article verifies the existence of implicit
socioeconomic bias on the part of judges through examination of recent
Fourth Amendment and child custody cases. These cases reveal that
judges can and do favor wealthy litigants over those living in poverty,
with significant negative consequences for low-income people.
The
article contends that the ABA Model Code of Judicial Conduct (the
“Code”), the document designed to regulate the behavior of judges, fails
to effectively eliminate implicit socioeconomic bias. The article
recommends innovative revisions designed to strengthen the Code’s
prohibition against bias, and suggests improvements to judicial training
materials in this context. These changes will serve to increase
judicial awareness of the potential for implicit socioeconomic bias in
their judicial decisions, and will bring this issue to the forefront of
the judicial agenda.