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Cynical Realism and Judicial Fantasy

Publication Title

Washington University Jurisprudence Review

Abstract

Recent scholarship on the workings of the court system has cast doubt on the ability of judges to make neutral, unbiased decisions. Statistical analyses of judicial decisions have identified a sizable minority of decisions that appear to be influenced by a judge’s ideology. These findings have fueled a “neutrality crisis” regarding the courts system’s ability to live up to its role as a neutral arbiter. Naïve realism accounts for this ideological bias by suggesting that judges, as humans, are subject to the same sort of perception biases as anyone else and that these unconscious biases can affect their decisions. By locating the source of the “neutrality crisis” in the unconscious, these scholars seek to account for the findings of the political scientists, while maintaining the legitimacy of the current institutional structure. However, this response is cynical. Cynicism anticipates the revelation of some real truth that undermines the ideology supporting the social fabric of society. By framing politically derived decisions as a product of naïve realism and offering advice on how to obscure unconscious judicial bias, legal scholars are employing cynical reasoning to maintain an illusion of neutrality while justifying non-neutral decision-making. This cynical reasoning sacrifices long-term “Rule of Law” interests for the sake of short-term political stability—an unnecessary and detrimental tradeoff. This Note seeks to isolate this issue and offer an alternative solution to the neutrality crisis informed by the latest findings from cognitive psychology and behavior economics. Judges must cultivate an independent ideology that is self-conscious of any personal biases and seeks to overcome those biases so that they may engage legal questions with a more detached, reasoned, and just decision-making process. This method will lead to more neutral, unbiased decisions from the bench and strengthen the rule of law in the United States.

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