In a 5-4 ruling this week, the supreme court ruled that a judge should recuse himself if there is a risk of actual bias
, even if the judge himself has searched his soul and concluded that he has no bias.
The case was eerily similar to the plot of John Grisham's recent novel, The Appeal. In the real-life case, a large coal company was found liable for $50 million in a jury trial in West Virginia. While their appeal was pending in the state surpreme court, the company's CEO spent millions of dollars to help Brent Benjamin, a candidate for state supreme court justice, win his election against the not-so-friendly-to-big-business incumbent.
Benjamin won the election in time to cast a deciding vote in the 3-2 ruling overturning the jury's decision and thus saving the large coal company millions of dollars and the danger of a precedent. The large corporation was happy. The plaintiff, not so much.
At issue in the US supreme court case was whether Benjamin should have recused himself due to the coal company's large financial contribution to his campaign. Benjamin did some soul-searching and concluded that he had no conflict of interest. The supreme court (or 5 of the justices, anyway), disagreed. According to the ruling, what matters for recusal is not the judge's own self-perception of his or her bias, but the actual probability of bias.
What is fascinating to me about this case is the supreme court's acknowledgment that there is such as thing as unconscious
bias. As I wrote about in my last entry, there is plenty of evidence that we are not aware of all of our own biases, and it is preposterous to trust other people's (or your own) self-perception of their own bias. Of course my own skepticism about self-reports does not stop at bias - I believe that we can be wrong about all kinds of things about ourselves. However, it seems to me that the first thing we should doubt about people's claims about themselves is their claim to neutrality, or their insight into their own biases. I'm not accusing Benjamin of outright lying
- he may very well have believed that he could be objective (then again, he may not). But I agree with the supreme court that on issues like this, the judge should not be the judge of his own bias.