Impartiality and emotion in judicial work[1]
The fundamental duty of a judicial officer is to administer justice impartially. This article examines how judicial officers understand and implement impartiality, drawing on extensive empirical research the authors have conducted.
Introduction
Impartiality is a foundational value underpinning judicial work.[3] While identifying “broad indicia of impartiality” may be “easy”,[4] translating it into judicial practice can be difficult.
Impartiality can seem to exclude emotion from judicial practice. Emotion is assumed to be political, unstable, personal and irrational, therefore jeopardising the impartial exercise of judicial authority.[5] A judicial decision affected by a non-legal element such as emotion may appear biased, and therefore illegitimate.
Despite this conventional disavowal of emotion, emotions and emotion management are essential (though not uncontroversial) for everyday judicial work.[6] Changes to court practice and procedure, such as increased appearances by unrepresented litigants, case management reform, emphasis on therapeutic jurisprudence and less adversarial approaches, may require judicial officers to be more emotionally engaged and expressive than conventionally expected. Recent scholarship demonstrates that conforming to the conventional model of dispassionate, detached and impersonal judging requires judicial officers to undertake considerable emotion work.
In-depth interviews enable investigation of how judicial officers understand impartiality, especially in the courtroom where emotion inevitably emerges and needs management. In this study, interviews were undertaken with 38 judicial officers from all levels of court in every State and Territory, in metropolitan and regional locations (but not Commonwealth courts).[7] Nineteen of the interviewees are men and 19 are women. Seventeen of the interviewees are magistrates (10 women; 7 men); the others are judges (9 women; 12 men). Interviews addressed key issues identified from the authors’ previous research into the Australian judiciary.[8] Open-ended questions allowed interviewees to discuss issues from their own perspective and in their own words with ample scope for probing responses.[9] The interview questions directly addressing impartiality asked: “A core judicial value is impartiality — what do you understand/mean by this concept?” “Could you describe your understanding of impartiality in lay person’s terms?”. Follow up questions might have asked about concepts such as neutrality, objectivity, or judicial independence.
Impartiality, emotion and judicial practice
Several themes emerge from the ways judicial officers characterise impartiality. Many judicial officers referred to a number of themes when elaborating on their understanding of impartiality. First, several interviewees rely on the actual words of the judicial oath. Second, many stress the core of judicial method, their duty to decide on the facts or the evidence, being open-minded, and putting aside preconceptions, biases or prejudices.[10] Third, some mention experiencing specific emotions in response to features of the substance of the case or the participants. Some understand emotion as a warning that impartiality may be under threat. Emotion management strategies such as self-awareness or self-talk are described as ways to stay focussed on the ideal of impartiality.
The judicial oath
When asked to define impartiality in lay terms, several interviewees refer to or quote the judicial oath.[11] The following judge finds it difficult to expand on an explanation beyond referring to the oath itself:
[Long pause] I’m sure I’ve thought about this from time to time or I’ve had to give myself a good talking to but I, look I think we all and I certainly do strive to do it … you know it’s what our oath of office is all about … so look I’m sure from time to time I’ve had to really, you know, think it through … but you know I certainly think I’ve always managed to come to a matter genuinely impartially as much as I, you know, conceive that to be. (I 33, female judge; emphases added.)[12]
This comment implies that impartiality is not necessarily a fixed state, but rather a goal, something that she “strive[s]” to achieve, and may entail some degree of self-talk.[13] She concludes that she has “managed to come to a matter genuinely impartially”, in terms of how she “conceive[s] that to be”, opening up the possibility that other judicial officers might conceive of impartiality somewhat differently.
The judicial role
Several interviewees frame their understanding of impartiality concretely in terms of adversarial legal method, emphasising the judicial obligation of keeping an open mind, hearing all the evidence and putting aside other factors, including emotion. This casts judicial decision-making as work of the mind.[14]
Keeping an open mind
A judge describes being impartial as keeping an open mind, waiting to hear both sides and all the evidence; she finds this is difficult:
I think it would be having an open mind. Not making a decision until you’ve heard all of the material to be placed before you … and having an enquiring mind … I found it the most difficult part. (I 35, female judge; emphases added.)
A magistrate also identifies the importance of legal process for achieving impartiality:
you’re nobody’s friend … You’re there to apply the law. That sounds simplistic. It’s hard to … It is very difficult … (I 26, male magistrate; emphases added.)
This magistrate stresses the core of judicial decision-making: “to apply the law.” This emphasis on a limited judicial role (“nobody’s friend”) indicates acceptance of the conventional adversarial and unemotional model of judicial decision-making. However, the magistrate also finds this “very difficult”, perhaps reflecting the challenges of emotion management needed to maintain this concept of impartiality.
In contrast, some judicial officers describe keeping an open mind as easy, normal, natural, and even intuitive:
Interestingly it’s easier to do than perhaps a lot of people think, you know, because in fact you don’t want your mind clouded by other issues … You keep an open mind until you’ve actually heard the evidence and allowed yourself to be persuaded by … their advocates or the material. (I 33, female judge; emphases added)
Putting aside bias and emotion
Several judicial officers elaborate on their understanding of an open mind as entailing setting aside biases and emotions. Biases refer to pre-existing attitudes or prejudices about particular issues or people; these may involve cognitive shortcuts or heuristics.[15] Emotions can emerge in various ways: annoyance or anger at a lawyer or litigant, distress stemming from the nature or facts of a crime, or a response to the grief or sadness of others in or outside the courtroom.[16] Biases and emotion can be connected as the following judge suggests:
but you know you are to put out of your mind, when dealing with the case before you, any personal prejudices or beliefs or sympathies or hostilities you may have of a preconceived nature but just to decide the case on the factors and on the evidence as presented to you. (I 01, female judge; emphases added.)
This judge operationalises the normative and practical requirements of impartiality as requiring putting “out of your mind” a list of elements including emotions, which are implicitly characterised as internal, individual, personal and removable.
For the next judicial officer, staying focussed on the obligation to decide cases according to law and fact is a way to put aside whatever emotion is thought to be inconsistent with this duty:
in terms of impartiality, I think, it is picking up that case and looking at, looking at the facts that come before you and deciding it on nothing but the evidence that you have before you and not what the person looks like, is wearing, or whether their lawyer is good or bad … It’s about putting all of that to one side as well and no matter how dreadful or unpleasant their lawyer is or they are, it’s about looking at the facts you have before you and making a decision on the facts and as they apply to the law. (I 03, female magistrate; emphases added.)
Describing decision-making as driven by the facts (objective, affectively neutral) and the evidence (as legally determined), implicitly excludes emotion and feeling from the process. Though aspects of the legal process can evoke or trigger emotional responses (“dreadful”, “unpleasant”), these must be put aside. This standpoint casts emotion as essentially negative. However, recent research questions this standpoint and the associated strategy, suggesting that “putting all that to one side” may not be realistic and can even be counter-productive, and that the experience and expression of emotion, even anger, can assist judicial work.[17]
Self-awareness and self-talk
Many judicial officers interviewed describe strategies to limit the impact of emotion in their everyday judicial work, including self-awareness and self-talk. These strategies can be understood as emotion work, emotion regulation or emotion management. “Emotion management refers to the cognitive, behavioural, and expressive strategies that individuals use to bring their emotional experiences and expressions in line with culturally mandated feeling rules.”[18]
The next judge describes keeping an open mind as entailing listening, as well as management of her own emotions.
you have to start with an open mind. So to start with an open mind you have to listen … you have to … look at and listen to everything that can properly be put before you … if you’re finding that the way a particular person is behaving makes you feel a little hostile or prickly about them, you know, what is that, what’s that trigger, is it actually them or is it something else about you. So that self-reflection … I think is helpful … that’s the essential aspect of impartiality is that you’re focussed on your, your process of decision-making and being self-aware in that of your … any inherent bias or emotional response or whatever it is. (I 37, female judge; emphases added.)
This judge underscores the importance of listening as part of maintaining an open mind. This could be especially important in lower courts, where sentencing decisions are often given ex tempore, as part of interacting directly with the defendant. She also refers to “being self-aware” and “self-reflection”, which relate to emotion management of both the experience of emotion and the outward display.[19] In particular she identifies the need to identify “that trigger” causing her to feel “a little hostile or prickly”. Such an “emotional response” might warn that a judge is not being impartial. Locating the source can facilitate regulating both the emotion experience and its expression.
Judicial officers tend to describe their practices as “thinking”, implying a cognitive rather than an affective or emotional process. But thinking and feeling can be intertwined, rather than being two separate processes or practices, as illustrated in the following comment:
you do feel some antagonism towards them either because of what they’ve done or sometimes how they conduct themselves but I think, you know, I know for myself that if ever I begin to sort of feel that way I consciously say look just, forget it, put it out of your mind because if, you know I’m mindful that it’s just folly, just gets you into so much trouble. (I 06, male judge; emphases added.)
This internal self-talk is a conversation between the judge as ordinary person and the judge, qua judge, implementing judicial impartiality. This judge identifies feelings as in conflict with impartiality. Starting to experience certain emotions or feelings, for example anger or hostility, might be a marker that the quest for impartiality could be compromised.
Conclusion
Several key themes emerge from the interviews when judicial officers were asked to explain impartiality. These include reliance on the terms of the oath itself and the need to keep an open mind, to hear both sides, to hear the evidence, stressing their limited role, to apply law to facts. Several emphasise the need and capacity to put aside information, attitudes or emotion thought to be inconsistent with achieving impartiality. A few interviewees also reflect on the practicality or difficulty of maintaining impartiality. For some, emotion appears to serve as a warning that impartiality might be under threat and describe strategies to maintain, or regain, emotional equilibrium, and hence, impartiality. Judicial officers describe talking to themselves as part of the management of their own emotions: a form of emotion work.[20] This self-talk entails reminding themselves of their judicial role — what they are there for — and its requirements, deciding cases based on the law and facts, thus identifying and following the appropriate feeling rules.
While not all judicial officers explicitly mention emotions or emotion management, the consistent image of impartial judging described is one where emotion is sometimes present, but should be absent. This research demonstrates that, in the quest to be impartial, judicial officers undertake considerable emotion work. Further research demonstrates the capacity of emotion to be a positive resource for judicial officers.[21]
Acknowledgements
We appreciate support from the Australian Research Council (LP0210306, LP0669168, DP0665198, DP1096888, DP150103663), Flinders University, the Australasian Institute of Judicial Administration, the Association of Australian Magistrates and many courts and their judicial officers. We are grateful to several research and administrative assistants over the course of the research, especially to Rhiannon Davies, Colleen deLaine, Jordan Tutton and Rae Wood for assistance with this article. All phases of this research involving human subjects have been approved by the Flinders University Social and Behavioural Research Ethics Committee.
[1] This article was previously published in (2017) 29(3) JOB 21, updated 2021. For more on the issues discussed in this article, and more recent research, see S Roach Anleu and K Mack, Emotion and Judging: A Socio-Legal Analysis, Routledge, 2021.
[2] Sharyn Roach Anleu is the Matthew Flinders Distinguished Professor in the College of Humanities, Arts and Social Sciences at Flinders University. Kathy Mack is Emerita Professor in the College of Business, Government and Law at Flinders University. Together, they lead the Judicial Research Project at Flinders University, see http://sites.flinders.edu.au/judicialresearchproject/, accessed 23 September 2021.
[3] The Council of Chief Justices of Australia, Guide to judicial conduct, 3rd edn (rev), Australasian Institute of Judicial Administration, 2022, Ch 2; C Geyh, “The dimensions of judicial impartiality” (2014) 65(2) Florida Law Review 493; M Gleeson, “Performing the role of the judge” (1998) 10 JOB 57; S Roach Anleu and K Mack, Performing judicial authority in the lower courts, Palgrave, 2017.
[4] The Council of Chief Justices of Australia, ibid, p 3.
[5] S Bandes, “Empathetic judging and the rule of law” (2009) Cardozo Law Review De Novo 133; S Bandes and J Blumenthal, “Emotion and the law” (2012) 8 Annual Review of Law and Social Science 161; T Maroney, “The persistent cultural script of judicial dispassion” (2011) 99(2) California Law Review 629; T Maroney, “Emotional regulation and judicial behavior” (2011) 99(6) California Law Review 485.
[6] Bandes, ibid; Bandes and Blumenthal, ibid; S Bergman Blix and Å Wettergren, “A sociological perspective on emotions in the judiciary” (2016) 8(1) Emotion Review 32; Maroney (2011), ibid; Maroney (2011), ibid; T Maroney and J Gross “The ideal of the dispassionate judge: an emotion regulation perspective” (2014) 6(2) Emotion Review 14; S Roach Anleu and K Mack, “Magistrates’ everyday work and emotional labour” (2005) 32(4) Journal of Law and Society 590; S Roach Anleu and K Mack, “Judicial authority and emotion work” (2013) 11(3) TJR 329.
[7] All interviews took place between August 2012 and December 2013. Interviews ranged in length from 25 minutes to 1 hour and 33 minutes. They were undertaken in CBD (N=31) and regional/suburban locations (N=7). Most interviews were conducted in the judicial officer’s chambers. In all interviews, interviewee consent was sought and granted to write down notes. After each interview, handwritten notes taken during or after the interview, or observations about the court building or location of the interview, were more fully written up. All but two interviewees consented to being audio recorded; these have been transcribed within the Judicial Research Project. This rich text-based transcript data was analysed using NVivo.
[8] K Mack and S Roach Anleu, “Performing impartiality: judicial demeanor and legitimacy” (2010) 35(1) Law & Social Inquiry 137; K Mack and S Roach Anleu, “Opportunities for new approaches to judging in a conventional context: attitudes, skills and practices” (2011) 37(1) Monash University Law Review 187; K Mack and S Roach Anleu, “Skills for judicial work: comparing women judges and women magistrates” in U Schultz and G Shaw (eds) Gender and judging, Hart Publishing, 2013; S Roach Anleu and K Mack, “Judicial appointment and the skills for judicial office” (2005)a 15 Journal of Judicial Administration 37; S Roach Anleu and K Mack, “Performing authority: communicating judicial decisions in lower criminal courts” (2015) 51(4) Journal of Sociology 1052.
[9] N Denzin and Y Lincoln, The SAGE handbook of qualitative research, SAGE Publications, 3rd edn, 2005; J Gubrium, J Holstein, A Marvasti and K McKinney, The SAGE handbook of interview research: the complexity of the craft, 2nd edn, SAGE, 2012.
[10] Maroney and Gross, above n 6. The Australian Law Reform Commission is currently undertaking a review of judicial impartiality: at www.alrc.gov.au/inquiry/review-of-judicial-impartiality/, accessed 23 September 2021.
[11] The full text of the oath as used for the High Court of Australia: “I, [name], do swear that I will bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law, that I will well and truly serve Her in the Office of Chief Justice [or Justice] of the High Court of Australia and that I will do right to all manner of people according to law without fear or favour, affection or ill-will. So Help me God!”, High Court of Australia Act 1979 (Cth) s 11, Sch.
[12] The interviews are labelled by the code “I ##.” I indicates interview data and ## refers to an individual interviewee. Quotes are given verbatim, with identifying details deleted. Some infelicities of language such as “umm” or “ah” have been deleted to improve readability. See Roach Anleu and Mack, above n 3.
[13] E Goffman, Forms of talk, University of Philadelphia Press, 1981.
[14] C Guthrie, J Rachlinski and A Wistrich “Inside the judicial mind” (2001) 86 Cornell Law Review 777; M Scheer, “Are emotions a kind of practice (and is that what makes them have a history)? A Bourdieuan approach to understanding emotion” (2012) 51(2) History and Theory 193.
[15] P Brest and L Hamilton Krieger, Problem solving, decision making, and professional judgment: a guide for lawyers and policy makers, Oxford University Press, 2010; Guthrie, Rachlinski and Wistrich, ibid; K Mason, “Unconscious judicial prejudice” (2001) 75 Australian Law Journal 676.
[16] H Baillot, S Cowan and V Munro, “Second-hand emotion? Exploring the contagion and impact of trauma and distress in the asylum law context” (2013) 40(4) Journal of Law and Society 509; T Booth, Accommodating justice: victim impact statements in the sentencing process, Federation Press, 2016.
[17] T Maroney, “Angry judges” (2012) 65(5) Vanderbilt Law Review 1207; Maroney and Gross, above n 6.
[18] K Lively, “Status and emotional expression: the influence of ‘others’ in hierarchical work settings” in J Clay-Warner and D Robinson (eds), Social structure and emotion, Elsevier/Academic Press, 2008, p 288. Also see A Hochschild, “Emotion work, feeling rules and social structure” (1979) 85(3) American Journal of Sociology 551.
[19] M Holmes, “The emotionalization of reflexivity” (2010) 44(1) Sociology 139.