Suja Thomas & David Lopez:
This article makes an excellent example of why nearly-correct commentary is dangerous. While it is helpful that the authors cite a 2015 study about a divergence between decisions made by a judge (from the bench) as compared to those by juries, that argument boils down to drawing a line in the sand as to how much judicial decisions must match those of juries. The authors clearly feel that juries agreeing with judges 75% of the time, in the study sample, is insufficient; they do not articular their minimum acceptable threshold: 80%? 90%? 99.999999999%? And they side-step the issue of bias in juries — perhaps the views of bigoted juries should be curbed by judges? Are juries selected in a way that is more fair than judicial selection (obviously, yes, though the article leaves the extent of that and limitations of jury selection unexplored). The study is limited to situations in which appeals judges overturned a lower court judge (in other words, the study of divergence between judge and jury views is limited to a sample in which judges disagreed).
Anyway, turning to the main thrust of the article, it has some troubling features. From a legal realist standpoint, it is clear that the authors are peddling a liberal “identity politics” platform, and are dredging around for facts that look like they support the authors’ preferred “identity politics” solutions. What do I mean by that? Well, for starters, the key to this article is its reference to “structural reasons”. This is invoked as the proper explanatory frame for judicial bias in a very specific way: the accusation is that judges are disproportionately white men, compared to the general population. While avoiding explicitly saying it, the authors are suggesting that if judges were made up of a racially/gender/etc. diverse base, then the problems they discuss would disappear. This is certainly better than the “implicit bias” framework. But nonetheless this approach has been tested in other contexts, and it fails. In particular, police departments have been exhorted to “diversify” for some time, and departments that have done so have not shown hoped-for reductions in discrimination. This is because the “identity politics” frame overlooks the role of ideology. Minorities can accede or succumb to hegemonic ideology, and thus act as collaborators in a biased system. Elaine Brown in her book The Condemnation of Little B referred to this as “New Age Racism” in a similar context. Walter Benn Michaels and Adolph Reed, Jr. have been hamming this point home for at least a decade too. Merely appointing more minorities to judgeships won’t solve the problem of a discriminatory ideology unless those judges are willing to challenge the hegemonic ideology. They might, or they might not — although more racial/gender/etc. fairness in such judicial appointments would undoubtedly be a good thing. The point is that the authors have offered an insufficient analysis. Their version of a “structural” analysis is flabby. To be sound, and come closer to being sufficient, it would need to take more account of power and something like ideology and class, though they do hint in that direction by saying that judges “may want higher positions in the judiciary or elsewhere, which can influence their decisions”, which is perhaps a passing reference to hierarchies of power, economic bases, and hegemonic ideology. A much more probing set of questions was raised in another article questioning how alternative dispute resolution arose to stifle discrimination suits — though this other article was offered by an independent scholar. Could it be that Suja Thomas and David Lopez themselves “may want higher positions in [academia] or elsewhere, which can influence their [theorizing]”, and therefore limit the scope of their criticism? Social science is only valid if it is reflexive and its intellectual weapons are also turned on those who create and wield them. Thomas and Lopez’ article does not seem to meet such a standard. It masks an adherence to a hegemonic worldview premised on inequality behind seemingly benign and well-meaning advocacy for minor technocratic improvements, thereby depoliticizing the underlying struggle and reinforcing the ideology that sustains bigotry at its very roots. In other words, a version of this quote by Frantz Fanon applies: “What matters is not so much the color of your skin [or, your gender] as the power you serve and the millions you betray.” (Black Skin, White Masks).