Judicial impartiality

Given legitimacy is of the utmost importance for courts, scholars have dedicated much attention to the factors that can taint public perceptions of impartiality. Campaign contributions can harm perceptions of institutional legitimacy (Gibson Reference Gibson2009) and fairness (Gibson and Caldeira Reference Gibson and Caldeira.2013), as can politicized campaign ads (Gibson et al. Reference Gibson, Gottfried, Delli Carpini and Jamieson.2011). More recently, Ono and Zilis (Reference Ono and Zilis2022) found that female and Hispanic judges are stereotyped to be biased in favor of their ingroup and thus less able to rule fairly in immigration and abortion cases. Badas and Justus (Reference Badas and Justus2023) find that respondents who believed there to be more millionaire justices on the Supreme Court were more inclined to state the Court was less legitimate and biased in favor of the wealthy. Scholars have also addressed the ways in which judicial scandal can shape perceptions of legitimacy. For instance, it has been demonstrated that such scandals can harm specific support for the Court, but not diffuse support (Boston et al. Reference Boston, Kassow, Masood and Miller2023). Our project contributes to this literature by demonstrating the ways in which judicial misconduct, especially that which is discriminatory in nature, can shape perceptions of impartiality.

Public expectations of judges and the implications of misconduct

In theorizing about expectations pertaining to impartiality, we start by assuming the US public has expectations for judges both in terms of how they should conduct themselves and how they should go about making decisions. Article III, Section 1 of the US Constitution states, “judges of both the supreme and inferior courts, shall hold their offices during good behavior.” While what constitutes good behavior is open for debate, it suggests there is some expectation or ethical standard for how judges are to conduct themselves. Other institutional features of the judiciary ensure independent decision-making. Judges are expected to act as unbiased, neutral decision-makers who are impartial in their rulings. A primary component of procedural justice theory is “neutrality in the process,” meaning the public values fair decision-making that is not dominated by one particular interest (Gangl Reference Gangl2003). Research has demonstrated that the public is more supportive of judicial decision-making that is unbiased and grounded in the law (Baird Reference Baird2001; Scheb and Lyons Reference Scheb and Lyons.2000; Tyler and Rasinski Reference Tyler and Rasinski1991) and void of partisanship (Hibbing and Theiss-Morse Reference Hibbing and Theiss-Morse1995). For example, the public expects judges to be guided more by legal justifications (Farganis Reference Farganis2012), precedent (Zink, Spriggs, and Scott Reference Zink, Spriggs and Scott.2009), and intent of the Founders (Scheb and Lyons Reference Scheb and Lyons2001) and less influenced by ideology or partisanship when making decisions. In other words, the public generally expects judges to refrain from letting their own biases determine how they will decide cases. It also appears that the public is willing to reward or punish lawmakers based on their judicial confirmation votes (Badas and Simas Reference Badas and Simas2022).

Not only does the public expect this type of ethical, impartial behavior from judges, but the Code of Conduct for United States Judges requires it both in and out of the courtroom. Canon 2A explicitly states, “Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges, including harassment and other inappropriate workplace behavior. A judge must avoid all impropriety and appearance of impropriety. This prohibition applies to both professional and personal conduct.” ^{Footnote 4} This includes how they conduct themselves on social media as well. State supreme courts are increasingly updating their codes of conduct to include statements on social media use. For example, the Illinois Supreme Court’s Code of Judicial Conduct states, “Judges must carefully monitor their social media accounts to ensure that no communication can be reasonably interpreted as suggesting a bias or prejudice…”Footnote ⁵ We also observe instances of judges being reprimanded for inappropriate behavior online. For example, the Texas State Commission on Judicial Conduct reprimanded a judge who posted discriminatory comments on social media.Footnote ⁶

Further, judges and justices themselves want to be viewed as impartial and aim to promote the legitimacy of the judiciary (Epstein and Knight Reference Epstein and Knight1998; Epstein, Landes, and Posner Reference Epstein, Landes and Posner2013; Posner Reference Posner2010; Glennon and Strother Reference Glennon and Strother2019). Evidence suggests that judges (Burke and Leben Reference Burke and Leben2007) and judicial councils (Vickrey, Denton, Jefferson Reference Vickrey, Denton and Jefferson2012), at least at the lower levels, are aware of the importance of procedural fairness in shaping public perceptions of the courts and that they strive to achieve this standard. Judges, like other public officials, are concerned with their personal reputation as well. They consider how a wide range of audiences such as their colleagues on the bench, other branches of government, social groups, professional groups such as bar associations, and the public perceive them and therefore work to preserve their personal image and reputation (Baum Reference Baum2006). Baum (Reference Baum2006) suggests judges are concerned with their “self-presentation” and desire to be liked and respected by those in their social community.

Allegations of harassment and discrimination can be deleterious to the legitimacy of the accused, such as a judge, as the behavior itself is outside of the expectations set for judges and because it expresses the potential for biased decision-making. It is not surprising that making racist or sexist comments is indicative of broader attitudes toward the targeted group and would lead people to view the judge as being biased toward said group. This extends to behaviors as well. For example, engaging in sexual harassment can be indicative of broader attitudes toward women. Hostile sexism (Diehl et al. Reference Diehl, Rees and Bohner.2018; Krings and Facchin Reference Krings and Facchin.2009; Masser et al. Reference Masser, Viki and Clair.2006; Russell and Trigg Reference Russell and Trigg.2004) and authoritarian attitudes (Begany and Milburn Reference Begany and Milburn2002) predict the proclivity to engage in sexual misconduct. Thus, sexual misconduct indicates more hostile attitudes toward women. Individuals holding such attitudes are likely to engage in biased decision-making, especially as it pertains to the rights of women.

Judges play an important role in deciding civil rights cases and often hear cases pertaining to the rights of women and racial and ethnic minorities. As such, we expect to find that judges accused of discriminatory behavior will be viewed as a threat to the rights of the group they target (H1). In other words, we expect judges who engage in discriminatory behavior toward women, racial minorities, and ethnic minorities to be viewed as a threat to those groups. We also expect to find that judges accused of discriminatory behavior will be viewed as less likely to rule fairly on cases involving the affected group (H2).

Research design

We implemented a survey experiment with 2,536 respondents ^{Footnote 7} on the CloudResearch Connect platform in May 2023 to test our hypotheses. Respondents were randomly assigned to one of ten conditions where we manipulated who was targeted (a woman, a racial minority, or an ethnic minority), the type of misconduct, and whether it was physical or nonphysical in nature. The control conditions include misconduct that does not target a specific person or group of people. We include forms of threat that are physical in nature alongside comparable forms of misconduct that are not physical in nature, as people react differently to physical threat versus nonphysical threat (e.g., social threat) (Goldin et al. Reference Goldin, Manber, Hakimi, Canli and Gross.2009; Landmann et al. Reference Landmann, Gaschler and Rohmann.2019). For example, people show a higher emotional reactivity to nonphysical threat (e.g., social threat) as opposed to physical threat (Goldin et al. Reference Goldin, Manber, Hakimi, Canli and Gross.2009). Since emotions are tied to political attitudes, we expect the distinction between physical threat and nonphysical threat to be important. Table 1 below shows the main vignette as well as the treatment and control conditions.

Table 1. Treatment and control conditions

After reading the vignette, respondents were presented with a series of questions asking about their perceptions of the judge; here we are specifically interested in whether they felt the judge was a threat to the rights of women, racial minorities, and ethnic minoritiesFootnote ⁸ and whether they were perceived as able to rule fairly on matters related to these groups.Footnote ⁹ We also asked several demographic questions such as gender, age, race and ethnicity, income, ideology, party identification, political knowledge, and interest and included questions to measure sexist attitudes (Glick and Fiske Reference Glick and Fiske1996; Swim et al. Reference Swim, Aikin, Hall and Hunter.1995) and racial and ethnic resentment (Kinder and Sanders Reference Kinder and Sanders1996). ^{Footnote 10}

To test our first hypothesis, that judges accused of discriminatory behavior will be viewed as a threat to those they target, we run an ordinary least squares regression. The dependent variables measure the extent to which the respondent agreed with the statement “the judge is a threat to the rights of [women, racial minorities, ethnic minorities].” These were coded on a 1–6 scale from strongly disagree to strongly agree so an increase means an increase in perceived threat.Footnote ¹¹ The independent variables were the treatment and control conditions. The nonphysical control condition was used as the baseline. The model includes control variables for respondent gender, party identification, conservatism, race (white), income, racial resentment, ethnic resentment, and sexism, which are not reported for simplicity.

The results are in Figure 1 below. Note that the coefficients for the physical control condition (i.e., a judge who caused a car accident while driving under the influence) are not statistically significant (p = .79, p = .61, and p = .53 in the models, respectively), suggesting that relative to a judge who engages in nonphysical, nondiscriminatory misconduct (i.e., using his status to get out of a ticket), there is no difference in perceptions of whether the judge is viewed as a threat to rights. Importantly, Figure 1 demonstrates that judges accused of discriminatory misconduct are viewed as a threat to the rights of the group that they target, as hypothesized. Interestingly, we also find that such judges are also viewed as a threat to other minoritized groups as well. For example, a judge who is accused of discriminatory misconduct towards a woman is also viewed as a threat to the rights of racial and ethnic minorities. One notable distinction is the effect sizes between treatment groups.Footnote ¹² For example, in the nonphysical sexual harassment condition, where a woman was the target of the misconduct, there was a 1.89-point increase in stating the judge was a threat to the rights of women, relative to the control (p < .001). However, there were only a .757 and .718-point increases in stating the judge was a threat to the rights of racial and ethnic minorities, respectively, relative to the control (p < .001 and p < .001, respectively). That is over a 1-point difference between agreement with the judge being a threat to the rights of women and the judge being a threat to the rights of racial and ethnic minorities. This extends to the treatment conditions where the judge targeted racial and ethnic minorities as well. For example, in the physical ethnic discrimination condition where the judge called immigration authorities on a Hispanic individual speaking in their native language, there was a 1.90-point increase in believing that the judge was a threat to the rights of ethnic minorities (p < .001) and 1.86-point increase in believing that the judge was a threat to the rights of racial minorities (p < .001), relative to the control, but only a .432 point increase in believing the judge was a threat to the rights of women (p < .001). Thus, while respondents view judges accused of discriminatory behavior toward one group as a threat to the rights of others as well, they are more likely to say the judge is a threat to the specific group targeted.

Figure 1. Judge is a threat to the rights of….

Next, we test hypothesis 2, that judges accused of misconduct toward a particular group will be viewed as less able to rule fairly in cases pertaining to said group. We use the same methods stated above; only the dependent variables measure agreement with the statement “this judge will rule fairly on matters related to the rights of [women, racial minorities, ethnic minorities].” This is measured on a 6-point scale of strongly disagree to strongly agree. As such, we expect the coefficients to be in the opposite direction so that misconduct leads to a decrease in the perception that the judge will rule fairly. As done above, the full model includes control variables for respondent gender, party identification, conservatism, race (white), income, racial resentment, ethnic resentment, and sexism which are not reported for simplicity.

Similar to our findings above, Figure 2 below demonstrates that judges who are accused of misconduct are viewed as less able to rule fairly on matters related to the groups they target, relative to the control of nondiscriminatory misconduct. In addition, they are also viewed as less able to rule fairly on matters related to other minoritized groups. Note that the effect sizes are much larger based on the treatment condition, as before. Those who were in the conditions where the judge was accused of discriminatory misconduct toward a racial or ethnic minority saw larger decreases in the belief that the judge was able to rule fairly on matters pertaining to said groups, relative to the control. These effect sizes were smaller, though still statistically significant, for women, relative to the control.

Figure 2. Judge able to rule fairly on matters related to….

Our findings have important implications for how the public views judges and their ability to act impartially and suggests that misconduct outside of the courtroom can influence how people perceive the judge inside of the courtroom. Specifically, judges who engage in discriminatory misconduct are viewed as a threat to the rights of marginalized groups more generally, not just the specific group their behavior targeted. They are also viewed as less able to rule fairly on matters pertaining to said groups.