Excerpted From: Vida B. Johnson, White Supremacy from the Bench, 27 Lewis & Clark Law Review 39 (2023) (8 Footnotes) (Full Document)

VidaJohnsonAmericans are having a national conversation about racism in the criminal legal system. With the proliferation of dash cameras, cell phone cameras, and police body cameras, many interactions between police and civilians are recorded so Americans have been able to see the disparate ways that police treat Black and Brown people when compared to their white counterparts. Television news and social media are filled with recordings of these interactions between police and the American citizenry.

Reformers and abolitionists have justifiably focused efforts in the post-George Floyd and post-Ferguson landscape on the police--an institution, as they describe it, that exists to subjugate people of color in our criminal legal system. Many have focused on the ways that interactions between police and civilians have their roots in white supremacy. Because so many interactions are recorded, Americans have witnessed it with their own eyes.

And while police have enormous power on the streets, as do the prosecutors who bring the cases, judges wield significant power over lives in courtrooms across America. Judges are decision-makers in many instances, including everything from small claims court to lawsuits involving millions of dollars, or family matters like probate, divorce, custody, abuse, and neglect. And in the criminal context, they hold power over a person's liberty. They sentence, they decide whether evidence should be suppressed, they make decisions about jury selection, and they often have the power to dismiss cases. The power of judges in criminal cases has grown even more so now that we have a system of plea bargains, rather than a system of jury trials. Questions of credibility, relative culpability and responsibility vis-à-vis codefendants, and discretion at sentencing all fall squarely on judges. Doctrines of judicial deference mean that many of a judge's decisions are unreviewable unless it can be shown that the decision caused harm.

I have previously focused on the seemingly intractable problem of white supremacy amongst police. I now turn my attention to the issue of racial bias from the bench. This is a decidedly less high-profile problem than that of interactions between police and ordinary citizens. Interactions between citizens, police, and judges are recorded rarely, especially prior to the COVID-19 pandemic. Most courtrooms do not allow audio or video recording or photography. Defense attorneys and prosecutors are often repeat players who may not want to make waves by reporting bias by a judge towards them or parties because they may worry about retribution by judges who are the decision-makers in most instances in court. But that does not mean that judges do not harbor racial animus. Despite the protection judges are afforded, there have been stories in the media from judicial conduct commissions and appellate courts about bias from the bench and in judges' private lives. This Article documents those stories from across our country to illustrate that the bench is not immune from white supremacy and that the legal system is one that is inherently unfair to people of color. It is the first law review article to focus on explicit racial bias by judges. By grappling with this topic, I hope to focus attention on how our legal system is infected with significant racial bias by even those who are meant to be neutral.

While there are many well-meaning judges, it should not be a surprise that there is racial bias among a substantial percentage. The 2009 article, Does Unconscious Racial Bias Affect Trial Judges?, found that judges do indeed harbor unconscious racial biases. These implicit biases are common amongst Americans of all races. When these implicit biases belong to actors in the legal system, they cause tremendous harm to people of color, and legal scholars have explored this disappointing phenomenon.

However, this Article focuses not simply on the important issue of judges' implicit racial biases that most Americans hold unconsciously or unwittingly, but also the explicit racial biases of some judges. In many cases, it is difficult to parse the two. When a person commits a racially insensitive act, it is hard to know if the person acted purposefully to hurt or unconsciously. For the victim it may not matter, especially in a legal setting where the outcome--that is, the legal decision--is the same whether the judge is acting on unconscious or conscious bias.

Unfortunately, both types of bias may be more common than many Americans want to believe. A not insignificant percentage of Americans consciously hold disturbing views about race, beyond just implicit thoughts. A 2017 poll found that almost ten percent of Americans thought that it was acceptable to hold neo-Nazi views. The proportion of white Americans who hold those views is likely higher than that of non-white Americans. When one considers that judges are disproportionately white, it is certainly possible that at least ten percent of judges hold explicit racial biases.

While significant harms are inflicted on people of color by police, prosecutors, other state actors, and of course private citizens, these structural and individual inequities are enforced in court by judges. Parties, who are in many instances people of color, seek out judges to resolve their disputes or they are forced into court against their will. However, judges are the only player in our adversarial legal system who are by design ostensibly neutral, impartial, and without bias. Civil lawyers have ethical obligations that require them to advocate for their client, prosecutors may be expected to support law enforcement and vice versa, and the defense attorney must zealously advocate for the accused. Not so for judges. While they are human, and despite what social science tells us about an individual's ability to control their biases, the law tells us to assume that judges are without any bias at all.

Any biases are a delegitimizing force in the system. But holding racial bias is a partiality that undermines the integrity of the entire legal system in our racially diverse country. While one would hope that the defense attorneys, prosecutors, and other lawyers would not hold racial biases, we know of course that they do. Somehow, there is something particularly troubling about a judge, the decision-maker, harboring a prejudice with nothing to do with the facts of a particular case, but merely the color of the litigant's skin.

Sadly, there are judges who hold such explicit racial biases. Many of the stories from courts, the media, and disciplinary boards are unsubtle and harrowing. A judge in Texas used racial slurs to describe Mexicans in his state in 2020. A white judge in Louisiana in 2020 referred to a deputy and a court clerk by the N-word. A white Colorado judge also used the N-word in a conversation with court staff in 2020. An Alabama judge said that the murder of George Floyd by police was justified and that he “pretty much got what he deserved.” A federal judge in Texas stated publicly that Black and Latino people are more violent than white people. A Jacksonville, Florida, judge said that Black people should go “back to Africa.” A federal judge in Montana used his court email to circulate a racist joke about President Barack Obama in 2012. An Ohio judge referred to COVID-19 as the “China Virus.” Altogether, I have documented scores of instances of racial bias by judges since the year 2000, but we should assume these headline-grabbing stories only represent a tiny fraction of the judges who hold conscious racial biases.

Most judges, with years of education beyond that of the average American and a bird's-eye view of how racial discrimination gets litigated, would not be so careless as to say explicitly racist things so that members of the public can have access to their words. We have to assume that the notorious and distressing stories represent the feelings of many more judges with more discretion, thought control, and ability to employ filters to their words.

That members of the bench harbor racist views should not come as a surprise. We have long known, for example, that judges sentence Black defendants more harshly than their white counterparts, even controlling for criminal record, employment, and education. There are deep inequities in the legal system. The bench needs to be viewed critically as a tool and enforcer of racial oppression. Deep racial inequities have persisted in our country and the law has addressed only some of the most egregious. Surveying legal rulings can confirm what a small percentage of judges have shown clearly: the law has been and is manipulated by judges to produce racially biased outcomes, reinforce racial hierarchies, and justify racism by law enforcement, private citizens, and government policies. Indeed, some of the country's legal rules were developed by judges, rather than lawmakers. Worse, judges have created legal doctrines to get around legal remedies offered by our elected representatives to keep people of color from recovering in court. supremacy from the bench is an integral part of our legal system and an integral part of our legacy of racism in the United States.

Not only do judges have the opportunity to inflict racial harms, they also arguably reinforce hierarchies that lead to racial biases in the act of judging itself. The judicial system is predicated on the idea that the judge is superior to the parties in front of them. The judge literally sits high, looking down on the litigants and witnesses. In many courtrooms, litigants, witnesses, and the public must stand when a judge enters a room and call the judge “your honor”; most importantly, the judge has the final say over the dispute. The judge's word is law. Given that a disproportionate number of the parties in court are people of color and judges are disproportionately white, racial biases are bolstered by the courtroom setting itself.

While I am certainly not the first person to connect racism from the bench to the corrosive harms our criminal legal system delivers to Black and Latino people, this Article ties those harms to explicit racial bias and posits that it is possible that, where judges have diminished the rights of people of color to uphold white supremacy, they have done so on purpose to harm Blacks, Latinos, Native people, and other people of color. While the actions of police, prosecutors, and other players have resulted in the inescapable racism of our legal system, I argue that the biases of judges are a significant part of the problem as well.

This Article will document explicit racial bias by judges and will proceed in several Parts. The Article will begin with an overview of the judicial system in the United States. In Part II, the Article next describes the racial impact of judicial racial bias. Park III demonstrates that judges across the United States have expressed racial bias by examining media accounts, disciplinary decisions, and appellate court rulings since the year 2000. The Article will conclude in Part IV.

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As discussed earlier, instances of judicial misconduct do not always get reported. There is a myriad of disincentives to reporting a judge, and the process is difficult and opaque. Complaints are lost, dismissed, or not credited. Even in the rare case in which a judge is disciplined, he or she may very well simply return to their positions. For example, a recent Reuters investigation showed that thousands of judges were disciplined for displays of bias, breaking the law, or other misconduct, yet 90% were allowed to retake the bench.

Our legal system puts too much power over millions of disputes and thus, millions of human lives, into the hands of the purportedly infallible. That system refuses to acknowledge the bias at play in our incredibly flawed legal scheme. A system that recognizes the fallibility of our system, and all of the individual players in it, is the only one that will bring fewer harms to people of color. Throughout the history of our legal system, much effort has been spent on trying to give this flawed system legitimacy and to insist in its fairness, despite the ample evidence to the contrary.

There is no way to extinguish racism from our judicial system, especially if we refuse to admit it is there. The laws enforced are often rooted in white supremacy. The punishments and resolutions the legal system offers are often racist. The act of judging itself reinforces white supremacy. The number of racist incidents in judges' private and professional lives documented here makes the point.

Associate Professor of Law, Georgetown Law School.