Implicit Bias Leaves a Lasting Mark on the Federal Judiciary

Courts Resources 08.18,20

By Sara Campbell and Maxwell Tinter

At a June hearing on police brutality and justice reform, Senator John Cornyn made it clear that he does not acknowledge systemic racism or implicit bias. He’s wrong. At a July oversight hearing on the Department of Justice, U.S. Attorney General Bill Barr testified that he does not see  systemic racism in police departments. He’s also wrong.

Regardless of whether or not Cornyn, Barr, and likely many others choose to accept it, our institutions are infused with bias and racism. And each of us holds implicit biases that affect the way we interact with people and our assumptions about them based on race, ethnicity, religion, sex, gender identity and expression, sexual orientation, disability status, and more. Unlike explicit biases, implicit biases are unconscious associations, but manifest particularly in decision-making processes where people may rely on stereotypes to help make sense of complicated circumstances. No one is exempt from these biases — not senators, not attorneys general, and certainly not judges, who are tasked with providing equal justice under the law.

Biases have plagued our legal systems since our government was created. For most of American history, the structures of our government embedded racism, as is evident through the institution of slavery, legalized segregation, and persisting disparities in prosecutions and sentencing. Justice reform efforts have sought to remove these biases from the law for generations in order to truly fulfill the promise of equal protection. Through reform efforts, we are still reckoning with a justice system that disproportionately arrests, imprisons, endangers, and kills Black and Brown people. Today, what fundamentally changes outcomes for these communities is not just the explicit racism and bias, but also the implicit biases of the people who comprise our justice system in practice. 

These prejudices and biases manifest in stop-and-frisks, over-policing of Black and Brown communities, the bail system, jury selection, fact-finding related to discriminatory practices, sentencing, and every other aspect of the justice system. Disparities and discrimination also persist in civil litigation that affect issues like voting, employment, and housing decisions. In fact, civil cases comprise more of the cases on the federal docket than criminal proceedings.

While every person involved brings their implicit biases to court with them, the role that judges play and how and whether those biases impact people’s civil and human rights is critical. It’s one of the reasons The Leadership Conference closely evaluates nominees to serve in lifetime appointments on the federal bench — to learn more about their experiences as well as whether and how they are working to combat these biases.

Through their decisions, federal judges at all levels — district courts, circuit courts of appeals, and the U.S. Supreme Court — can influence and change the systemic practices that contribute to unfair outcomes for people subject to these biases. And even though judges are an integral part of a process purported to ensure fairness, they hold their own implicit biases — so it’s important to understand and reckon with the biases that may affect their decisions and actions.

The racial and ethnic homogeneity of our federal judiciary makes these implicit biases more likely to impact the same communities that the justice system has historically mistreated. Implicit biases largely “stem from a pervasive desire to feel positive about oneself based on one’s group membership,” meaning judges’ negative associations are likely to be held against individuals who exist outside of their own racial and ethnic groups. Thus, a judiciary that is disproportionately white runs the risk of alienating, harming, or oppressing people of color. While the diversity of the federal judiciary has increased in the past few decades, it remains overwhelmingly white and male, a pattern that has increased and accelerated under the Trump administration. In fact, President Trump replaced 14 people of color — including eight women of color — nominated by President Obama with white nominees. Of the 203 lifetime judges appointed by President Trump, 157 are white men.

In confirmation hearings for these lifetime appointments, senators, including Senator Cory Booker, have asked nominees whether they acknowledge bias in the justice system and what role judges should play in mitigating this bias. Asking these questions is a step in the right direction. Given the unconscious and self-affirming nature of implicit biases, this is a vital effort to determine whether these potential judges can recognize internal bias because, as simple as it sounds, recognizing its existence is the first step to confronting it.

Ultimately, there is no one solution to the problem of implicit bias in our justice system.

It will take difficult individual and systemic confrontation of held biases and a concerted effort on behalf of policymakers, educators, and advocates to implement effective solutions that acknowledge and correct these biases. Nominating and confirming more individuals reflective and representative of the diversity of our country — including more Black and Brown people, women and women of color in particular, LGBTQ+ people, people with disabilities, and those from a wide range of experiential and professional backgrounds — is also critical to combatting the impacts of implicit bias.

In addition to more diversity on the bench, we need implicit bias training. There are a number of people and organizations confronting the issue of implicit bias in courts head on. The American Bar Association’s Joint Committee on Fighting Implicit Bias in the Justice System, chaired by Judge Bernice B. Donald of the Sixth Circuit, has developed a number of resources to lessen the negative impacts of implicit biases in our justice system, including a toolbox that explores approaches to lessening biases with educational materials for public use. The National Center for State Courts has also released a report with strategies to reduce the influence of implicit bias by exploring the risk factors that make these biases particularly dangerous. And the state of Michigan has recently announced mandatory implicit bias training for all state employees, including state judges.

While these resources and others are available for judges to participate in bias training and reduction, this training is not mandatory and is often only intended for new judges. More is needed. Not only should there be regular opportunities for judges to evaluate and confront their own biases and how those biases impact them as jurists, but there should also be robust systems of accountability that ensure that anti-bias policies in courts are enforced and are free from bias themselves. In short, it will take sustained efforts to rid our institutions of the racism and bias infused within them. It will take dedicated attention from everyone with power in our legal system — from those selecting and evaluating candidates to those who are on the bench — to ensure that our judiciary can finally meet its promise of equal justice under law.

Sara Campbell is a junior at Yale University. Maxwell Tinter is a senior at Georgetown University. Both served as summer 2020 undergraduate interns at The Leadership Conference on Civil and Human Rights.