Lady Brenda Hale, the current President of the UK’s Supreme Court, recently gave a talk about the desirable qualities of judges in a modern-day democracy. Diversity, which she calls the “new kid on the block”, is one such quality.
The Importance of Judicial Diversity
One of the reasons for this, she says, is that it contributes to “the quality of decision-making”. In her words:
“we all bring something different to the business of judging. We bring our experiences of life, our values, our philosophies of judging, our inarticulate major premises, our unconscious biases.”
By insisting on diversity in order to enhance the quality of decision-making, Lady Hale is asking that the myriad of life perspectives that each of us (by definition) has is brought to the judicial table, and taken into account when making very important decisions, including about people’s liberty and how much money a person has to pay for breaking their contract to another.
Some people think that diversity should not be a criterion for selecting judges. They consider that “only qualification, skill and ability should be considered” – see the comments section of this Guardian article (and a later article of mine for a discussion of the merits of that argument). This idea suggests that “qualification, skill, and ability” are attributes equally obtainable and realizable for everybody capable of achieving them, and that obstacles to achieving them (such as funds to obtain a lawyerly qualification) do not exist.
The Dangers of ‘Pure’ Legal Reasoning
To remind us that we do not live in a legal vacuum devoid of the historical, cultural, and socio-economic factors around us, I thought I’d share with you some snippets from judgments I’ve read for my ‘Introduction to American Law’ class at Columbia Law School, with the absolutely wonderful Professor Carol Sanger.
Each judgment was generally considered at the time of its delivery to be an instance of sound “legal reasoning” given by skilled, able, and qualified judges. Yet the findings in each case would be quite morally reprehensible to people today (and likely was to the losing party in the case back then). Although these cases have been generally overruled now, they go to show that we cannot always trust the concept of ‘pure legal reasoning’ from qualified judges to deliver the most just outcome of the day.
In summary, we need a diverse judiciary to enable us to take into account the multitude of socio-economic, historical, and cultural factors that simply go under the radar, that are ‘unconscious’, but which really matter for a fair outcome in a case. If you don’t believe me, check out the ‘legal reasoning’ below…*
1. The One Where The Lovings Challenged a Law Banning Interracial Marriage…
Loving v Virginia, 388 U.S. 1 (1967) (quote from trial judge in the case)
2. The One Where Mr. Johnson Argued That Native American Indians Owned Their Land…
Johnson & Graham’s Lessee v. McIntosh, 21 U.S. 8 Wheat. 543 (1823)
3. The One Where a Black Man Tried To Assert His Freedom…
Dred Scott v Sandford 60 U.S. 393 (1857)
4. The One Annulling an Interracial Marriage
Naim v Naim, 197 Va. 80 (1955), cited in Loving v Virginia, 388 U.S. 1 (1967)
If you are shocked by this reasoning, please encourage equality and diversity today. Check out the UK’s Equality and Human Rights Commission website for more details.
*Although these are American law cases, since this article is about the broad idea that unconscious bias affects judgment, these cases are relevant for looking at the UK context.