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When Impartiality Is Required, Bias Management Should Not Be Discretionary

Impartially means impartially.

Key points

  • One definition of bias is “an unfair personal opinion that influences your judgment.”
  • Religion and religious beliefs are choices, which can and do change over time. They form and shape cultural beliefs.
  • Judges are required to impartially discharge and perform their duties, which means not allowing their biases to influence their decisions.

It is noteworthy that three United States Supreme Court justices nominated to that Court by Donald J. Trump prioritize the freedom of religion to discriminate against others over people’s freedom not to be discriminated against. I find it especially noteworthy because Trump’s own daughter, Ivanka, converted to Judaism to marry Jared Kushner. In other words, those justices are on that Court because of a President whose daughter demonstrated that religion and religious beliefs are choices that can and do change over time.

One definition of bias is “an unfair personal opinion that influences your judgment.” Just because such an opinion is based upon a person's religion or religious beliefs does not mean it is not “an unfair personal opinion that influences [their] judgment.”

I support people’s freedom to believe whatever they want to believe. However, a line must be drawn when the beliefs of one person or group of people harm another person or group of people.

Those who enslaved other human beings in this country used the Bible as justification. Jim Crow laws and racism in this country have been and continue to be legitimized based upon theology. Sexual prejudice and discrimination against those who are not cisgender, straight, and male is based in great part on religion and religious beliefs. Furthermore, such beliefs were responsible for forming and shaping our culture, including the drafting of the United States Constitution, which a majority of the United States Supreme Court justices believe should be interpreted based on its meaning at the time it was drafted.

The Constitution mentions nothing about marriage. In 2009, the New York Times determined that the lifetime civil benefits received by married couples ranged from $41,196 to $467,562. According to the Consumer Price Inflation Calculator, as of May 2022, that range would be from $71,335.46 to $809,635.68.

That is not an insignificant amount of money, those benefits are paid with taxpayer dollars, and those figures do not even include the value of the state, local, and workplace benefits that married couples receive. It bears mentioning that the right for same-sex couples’ marriages that were entered into legally to be federally recognized and therefore eligible for federal benefits occurred in Windsor v. United States, which was decided on June 26, 2013, a little over nine years ago.

Of the five Republican-appointed Supreme Court justices serving at that time, only Anthony Kennedy voted to federally recognize such marriages. Three of the justices who voted against such recognition remain on the Court, and it is fair to say that had that case come before the Court today, such marriages would not be federally recognized.

The “originalist” argument is that such a right did not exist at the time the Constitution was drafted. Interestingly enough, while marriage is never mentioned in the United States Constitution, the federal benefits associated with marriage did not exist at the time the Constitution was drafted. Yet, except for Justice Kennedy, the Republican-appointed justices found nothing unconstitutional about such a massive amount of taxpayer money being given to married couples while denying such benefits to gays and lesbians unless those gays and lesbians enter into heterosexual marriages. Gays and lesbians are among the taxpayers who pay taxes that pay for such benefits.

I would also like to mention that we know clearly what the United States Constitution says about the Republican-appointed replacements for Justices Thurgood Marshall and Ruth Bader Ginsburg–Clarence Thomas and Amy Coney Barrett.

Our Founding Fathers who drafted the United States Constitution would be mortified at the very thought of females and Black people serving on that Court. Yet, those two individuals, among others, claim to interpret the Constitution based upon "originalism."

What is even more noteworthy than prioritizing the freedom of religion to discriminate against others over people’s freedom not to be discriminated against is the reality that people serving on that Court, contrary to any “originalist” interpretation that precludes them from serving on that Court are using their position to interpret the Constitution in an “originalist” manner. They do so in a way that it becomes the law of the land that members of historically marginalized groups can be legally discriminated against based upon other people’s religious beliefs, including those held by the justices making such decisions.

Then, to add insult to injury, plenty of people, likely including Supreme Court justices themselves, purport to support such rights if those rights are granted through the legislative process; yet, they exercise their civic right to vote such that those rights will not be granted through the legislative process.

The United States Supreme Court justices take the following oath:

I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States.

Impartially is defined as “able to judge or consider something fairly without allowing your own interest to influence you.” That means judges, including the United States Supreme Court justices, swear under the Constitution and the laws of the United States to keep their personal biases in check to the extent humanly possible.

In 1994, Timothy D. Wilson and Nancy Brekke provided scientific proof that bias could be avoided or eliminated as follows:

  • Become aware of the bias and why it exists;
  • Have the motivation to overcome it;
  • Be aware of the direction and magnitude of the bias; and
  • Have the ability to apply an appropriate strategy to help reduce or otherwise manage the bias.

Many of these justices’ personal biases are well-known, even to the justices themselves.

The essential first step to bias reduction or otherwise keeping biases in check is awareness of the bias. We are all aware of our explicit or conscious biases. However, awareness itself is not enough even for people to keep their explicit biases in check.

Left unchecked, biases cause people to constrict and distort the information they receive, try to understand, and consider in a fair manner. The more constricted and distorted the information received, understood, and fairly considered, the more impaired the thinking involved.

The motivation is the motivation to be fair, which requires emotional empathy. It is essential to understand that empathy is a complex concept. We all tend to have empathy toward people who look, act, and think as we do. What is challenging is developing empathy toward those who do not look, act, and think as we do.

Researchers have found that some terrorists have higher than average levels of empathy; however, their empathy is limited to those they perceive as members of their own tribe–those who look, act, and think as they do. If one’s perception of fairness is skewed, they may believe they are being fair when they aren’t, or they may just lack the motivation to be fair because they believe that their being unfair is justified.

The motivation to overcome bias requires that one’s sense of fairness is in balance. Emotional self-awareness and emotional empathy combine to create “self-other awareness.” One cannot accurately understand someone else without first understanding themselves.

The research reflects that the emotional intelligence skill that lawyers tend to score lowest in is in their awareness of emotions in themselves and others. Judges, even United States Supreme Court justices, tend to be lawyers. If they lacked such skills before they became judges, they do not somehow magically develop such skills by virtue of their role as judges.

Since people are and always will be unaware of their implicit or unconscious biases, the question is how do they become aware of the bias and why it exists, the requisite first step to keeping biases in check? The answer lies in emotional self-awareness or reflective thinking, which occurs when people have developed the skills and ability to realize on their own that they are missing context and complexity on most everything and, rather than constricting the information they receive, try to understand, and consider in a fair manner, they actively seek it out. Unfortunately, that is impossible unless the person is aware of the emotions in themselves and others.

In her recently published book The Inclusive Leader: Taking Intentional Action for Justice and Equity, Artika R. Tyner presents various studies that reveal the particularly high prevalence of implicit bias in the legal field.

According to social science researcher Brene’ Brown, “nothing is sustainable without boundaries.” When human beings accept a job that requires them to act impartially, a necessary boundary is the motivation to overcome personal biases to the extent possible. Since many judges clearly lack internal motivation to overcome their biases in spite of the oath they take, more external motivations seem to be in order, particularly for the United States Supreme Court justices, because no code of ethics currently applies to them.

More from Mark B. Baer, Esq.
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