THE LEGITIMATE EXERCISE OF JUDICIAL POWER

It is axiomatic that liberal states are committed to maintaining citizens’ ability to choose for themselves a vision of the good life.Footnote ² Given the centrality of this understanding of freedom in liberal thought, and given also that religions tend to adopt particular views about the meaning of the good life, it is hardly surprising that liberal theorists and states view religious neutrality as a noble ideal for judges.Footnote ³ If a judge were to justify their reasons on the basis of a particular religion, they might fairly be seen as imposing the tenets of their religion on litigants, and compromising those litigants’ ability to choose for themselves a comprehensive view of the good.Footnote ⁴

Accordingly, as John Rawls's well-known argument goes, judges should rely only on public reason, which “neither criticizes nor attacks any comprehensive doctrine, except insofar as that doctrine is incompatible with the essentials of public reason and a democratic polity.”Footnote ⁵ The commitment to judicial neutrality is thus explained by a desire to ensure the legitimacy, in principle and appearance, of judicial decisions.Footnote ⁶ There are, however, reasons to doubt the attainability of such an ideal. As Charles Taylor has argued, true neutrality is a practical impossibility. In “The Politics of Recognition,” Taylor writes that the only standards Westerners have to evaluate other cultures “are those of North Atlantic civilization.”Footnote ⁷ Others have expressed this idea as the “inevitability of subjectivity,”Footnote ⁸ and the Supreme Court of Canada has concurred that “from a philosophical standpoint, absolute neutrality does not exist.”Footnote ⁹

With specific respect to judges, Martha Minow has similarly argued that judges “inevitably [see and judge] from a particular situated perspective.”Footnote ¹⁰ In the evocative words of Justice Cardozo from nearly a century ago, though judges “may try to see things as objectively as we please … we can never see them with any eyes except our own.”Footnote ¹¹ A recent unanimous decision of the Supreme Court of Canada candidly affirms this view, noting that judges “will certainly have been shaped by, and have gained insight from, their different experiences, and cannot be expected to divorce themselves from these experiences.”Footnote ¹²

Mark Modak-Truran takes this position further. He argues that, given a legally indeterminate environment and a sufficiently broad definition of religion (similar to Rawls's “comprehensive doctrines”),Footnote ¹³ religious convictions are in fact central to judicial decision-making:

Similarly, Stephen Carter writes that “it is quite evident that the judge cannot make … decisions without relying, at least in part, on her moral knowledge.”Footnote ¹⁵ Sanford Levinson reminds us that a good deal of judges’ work involves doing justice, and that arriving at a right result may require a preliminary vision of the good.Footnote ¹⁶

As an example of this claim, Kathryn Lee argues that US federal Judge John T. Noonan's decisions in the realm of immigration were significantly influenced by his Catholic background.Footnote ¹⁷ Though appointed by Ronald Reagan's Republican administration and presumed to be politically conservative, Lee suggests that the concept of exile within biblical narratives made Justice Noonan more sensitive to the personal plights of refugee claimants and allowed him to hear their stories with deeper sympathy than other judges.Footnote ¹⁸

Empirical studies support the view that religion and judicial decision-making are in some sense interconnected, though these focus principally on outcomes, not reasoning.Footnote ¹⁹ In Canada, Donald Songer's quantitative analysis of more than thirty years’ worth of cases at the Supreme Court of Canada found a statistically significant influence of religion on judicial voting, though the impact of religion seems to have waned in the post–Charter of Rights and Freedoms era.Footnote ²⁰ In the United States, Songer and Susan Tabrizi reviewed approximately 3,900 cases in state supreme courts from 1970 to 1993, and found that “Evangelical justices were found to be significantly more conservative than mainline Protestant, Catholic, and Jewish justices in death penalty, gender discrimination, and obscenity cases.”Footnote ²¹ In Songer and Tabrizi's view, “[t]hese findings suggest that religious affiliation is an indicator of a source of judicial values that is independent of partisan sources of values that have been discovered in previous research.”Footnote ²²

Gregory Sisk, Michael Heise, and Andrew P. Morriss approached this question from a different direction. Analyzing all published US Federal District and Appeals court decisions involving religious freedom issues over a ten-year period (1986–1995), they found that “the single most prominent, salient, and consistent influence on judicial decisionmaking was religion—religion in terms of affiliation of the claimant, the background of the judge, and the demographics of the community.”Footnote ²³

Sisk and Heise later analyzed a different data set of 238 cases from US Federal Courts raising Establishment Clause issues for the period 1996–2005.Footnote ²⁴ Challenging, to some extent, Songer and Tabrizi's claim about the independence of religion and partisanship, they concluded that, “[i]n the context of federal court claims implicating questions of Church and State, it appears to be ideology much, if not all, of the way down.” Their key finding is that

Sisk and Heise note that their findings could be

Their own view is tempered by the consideration that the prevailing majority opinions on the Establishment Clause from the US Supreme Court are vague and admit of multiple interpretations.Footnote ²⁷ Accordingly, “the Supreme Court's Establishment Clause jurisprudence invites even the most conscientious of judges to draw deeply on personal reactions to religious symbols and political attitudes about religious influence on public institutions or policies.”Footnote ²⁸ Sisk and Heise's results show, at least, that judges’ previously held normative beliefs, what Richard Posner would call their “priors,”Footnote ²⁹ have a noticeable effect on judgments having to do with religion.Footnote ³⁰ A more recent study offers some additional support, finding that Jewish judges had a higher propensity to be concerned about the separation of religion and state than their fellow judges.Footnote ³¹

A modest reading of the above empirical research supports the claim that religious affiliation and preexisting ideological commitments have some impact on judicial decision-making, though these considerations are usually not articulated in the judgments themselves.Footnote ³² This is hardly a bombshell. Most people would, I think, admit that the worldview of the judge has some influence on their decision-making. But much legal discourse seems to assume that such commitments can be neutralized through the reliance on public reason. It is to this faith in the power of reason that I turn next.

FAITH IN REASON

In Rawls's influential formulation, citizens act reasonably when they abide by the “criterion of reciprocity.” They should propose terms of cooperation that they “think it at least reasonable for others to accept… as free and equal citizens, and not as dominated or manipulated.”Footnote ³³ If judges are to live up to this criterion, the reasons they offer for their dispositions must be independent of religion, as it would not be reasonable for a judge to expect others to accept the truth claims of their religion. But does this form of public reason provide a genuine corrective to individuals’ personal moral commitments, or does it instead mask the normative foundations of a particular decision? Even if they are committed to public reason, judges, as human beings,Footnote ³⁴ might be predisposed to accept arguments that are consonant with their normative commitments and communal backgrounds. Recent research suggests that people's judgments about which reasons are most persuasive are colored by their intuitive moral judgments, and their moral judgments are shaped (though not determined) by their communal affiliations.

On the basis of multidisciplinary research drawing on “social psychology, anthropology, communications, and political science,”Footnote ³⁵ Dan Kahan argues that human beings “lack the psychological capacity … to make, interpret, and administer law without indulging sensibilities pervaded by our attachments to highly contested visions of the good.”Footnote ³⁶ His theory of cultural cognition holds that people are more likely to believe facts that accord with their normative commitments and be skeptical of facts that conflict with those commitments. “[R]ather than update their prior beliefs based on new information, [real-world people] tend to evaluate the persuasiveness of new information based on its conformity to their experience.”Footnote ³⁷ Bringing this insight to bear on legal decision-making Kahan and Donald Braman argue that

Moral psychologists agree that confirmation bias has been shown to be “powerful [and] ineradicable.”Footnote ³⁹ Moreover, they conclude from their experimental data that moral judgments are informed to a large degree by emotional reactions experienced as intuitions; “intuitions arise automatically and almost instantaneously, long before moral reasoning has a chance to get started.”Footnote ⁴⁰ Some moral psychologists claim that nearly all reasoning occurs subsequent to and in service of the initial moral emotion. Jonathan Haidt, for example, analogizes human reasoning to a press secretary: it exists to justify to others our intuitive, emotional responses.Footnote ⁴¹ Other psychologists take the more moderate view that while many decisions arise from intuitions, people are capable of slower, more deliberate processing. The most well-known proponent of this theory, Daniel Kahneman, nevertheless notes that our intuitive forms of decision-making are prone to exert influence upon, and sometimes dominate, our more careful reflections. This is especially the case “[i]n the context of attitudes” where the “search for information and arguments is mostly constrained to information that is consistent with existing beliefs.”Footnote ⁴² Coupled with the findings on cultural cognition, these psychological findings provide a good reason to expect that judicial determinations are not always made as pure reason from first principles,Footnote ⁴³ as we might sometimes like to imagine, or even as judges may experience them.Footnote ⁴⁴ Instead, psychological findings suggest “that personal values influence judicial decisions,”Footnote ⁴⁵ and that judges may be subject to some of the same errors as laypeople, such as reliance on stereotypes and an inability to set aside inadmissible evidence.Footnote ⁴⁶ Lawrence Wrightsman finds, on the basis of an empirical analysis of US Supreme Court decisions, that persuasion operates differently with respect to obviously ideological cases than with respect to non-ideological cases. In ideological cases, the final vote is less often unanimous, courts are likely to take longer rendering a decision, lawyers for the losing side usually get asked more questions, and the Court sides with the solicitor general less often.Footnote ⁴⁷ While there are competing theories as to whether judges’ ideology structures their decision-making in a “top-down” (the judge decides the outcome based on ideology and then provides the reasoning) or a “bottom-up” fashion (ideology affects the many micro-decisions required to reach a conclusion), there is fairly broad recognition that ideology and values affect judicial reasoning.Footnote ⁴⁸ Elsewhere in the psychological literature, “several studies have demonstrated a relationship between religiosity (the quality of being religious) and personal values.”Footnote ⁴⁹ If religiosity impacts values and values affect decision-making, we have reason to think that judges’ religious commitments have some impact, some of the time, on their decisions.

This is not to say that all judicial reasoning is an illegitimate exercise, untrue to liberal principles due to the potential influence of religion. Rather, decision-making is likely to be affected, some of the time, by a judge's communal and normative attachments, religious or otherwise. The frequent emphasis on separating out religious influence in particular stems from a concern that judges will rely on some privileged knowledge or insight that “others do not or cannot share.”Footnote ⁵⁰ But assuming that all religiously devout people treat the precepts of their faith as authoritative, unquestionable, revealed truths “is very much a caricature of how religion operates.”Footnote ⁵¹ Further, if the concern is based on the problems posed by a judge's reliance on a text whose authority is contentious, it ought to be “identical if the text is Mill or Locke or Lenin or Charles Murray.”Footnote ⁵² And yet, there is little or no public outcry when judges cite some such authors, even as part of the philosophical underpinnings of their reasons.Footnote ⁵³

And even when no contentious authority is cited, other interpretive commitments made by judges might involve something like an act of faith.Footnote ⁵⁴ US Supreme Court Justice Antonin Scalia was famously committed to his originalist interpretation of the United States’ Constitution,Footnote ⁵⁵ as opposed to some of his colleagues. In contrast, Canada's Supreme Court has, in its rhetoric if not always in its decisions, followed the “living tree” metaphor, holding that constitutional principles must evolve and adapt over time.Footnote ⁵⁶ There is nothing in the text of either country's constitution that mandates one form of analysis or another.Footnote ⁵⁷ In other words, judges’ publicly proclaimed interpretive commitments may be more akin to religious commitments than is generally believed; despite their best arguments, they are unable to convince one another of the most appropriate mode of interpretation.

IMPLICATIONS FOR JUDICIAL DECISIONS

Taking seriously the empirically supported idea that judges draw on their personal morality to resolve disputes requires us to rethink the dominant position on the permissible role of religious reasons in state courts.Footnote ⁵⁸ If judges’ reasoning is sometimes informed by their religious background or relies on some unproven proposition, should they be explicit about it?

One response might be that, because democratic societies value transparency in decision-making, judges should present all the factors that influenced their decisions. Indeed, research in cultural cognition supports the claim that, if judges are forthright about their ideological commitments, they may be more likely to find common ground with those who do not share those commitments. Writing of the US Supreme Court, Kahan argues that

In response, Kahan suggests two techniques of writing by which judges can be transparent and defuse charges that their decisions are completely driven by ideology. The first, which Kahan calls aporia, calls on judges to acknowledge the complexity of the cases they are deciding. “Aporetic engagement does not preclude a definitive outcome or resolution. But it necessarily treats as false—a sign of misunderstanding—any resolution of the problem that purports to be unproblematic.”Footnote ⁶⁰

The second technique, more relevant here, Kahan calls expressive overdetermination. This has two requirements. First, expressive overdetermination requires candor.Footnote ⁶¹ Decision makers should “acknowledge, and not conceal, how they understand a law or policy proposal to express meanings distinctive of their own worldviews.”Footnote ⁶² Though decisions could continue to be justified on instrumental considerations, decision makers could not insist that the policy was disconnected from any ideological commitment. The second requirement, cooperative overdetermination, would oblige a judge to “find alternative ways of framing [decisions], that permit persons who hold cultural outlooks opposed to their own to defend the law as expressing meanings distinctive of their worldviews as well.”Footnote ⁶³ Kahan says that this aspect of expressive overdetermination quells the threat to group-based identity that emerges from a policy justified in purportedly neutral terms.Footnote ⁶⁴

Though this aspect of Kahan's research is not empirically proven, there is “modest empirical support for these conjectures.”Footnote ⁶⁵ For instance, Tom Tyler and Gregory Mitchell examined the US Supreme Court's abortion decisions.Footnote ⁶⁶ “For respondents who disagreed with the outcomes, the belief that the Court should nevertheless be empowered to determine the constitutionality of abortion was strongly associated with the perception that the Court had given fair and open-minded consideration to opposing arguments.”Footnote ⁶⁷

Kahan points to a number of US Supreme Court decisions displaying cooperative overdetermination. In the decisions on the University of Michigan's affirmative action programs “the Court permitted the law school to pursue the goal of ‘diversity’ by treating race as an indeterminate amorphous ‘plus factor,’ but struck down the college's mechanical point system because it denied applicants ‘individualized consideration.’”Footnote ⁶⁸ In so doing, the Court supported a liberal policy preference but infused it with the ideology of individualism cherished by US conservatives. Similarly, the US Supreme Court treated public displays of the Ten Commandments differently in two cases. “In McCreary County v. ACLU of Kentucky, it struck down a conspicuous, ornamental courthouse display that evinced a ‘sectarian spirit.’ In Van Orden v. Perry, in contrast, it upheld ‘passive’ inclusion of the Commandments in a group of monuments calling attention to diverse ‘strands in [Texas's] political and legal history.’”Footnote ⁶⁹ In the latter case, the conservative policy preference was upheld on the basis of anti-sectarianism and diversity, values more closely associated with American liberals. Kahan claims that such overdetermination can serve to counter ideological polarization and help avoid delegitimizing the court.

As a Canadian counterpoint to Kahan's examples, consider Chamberlain, in which the Supreme Court read a legislative requirement that schools be operated under a policy of “strict secularism” as mandating inclusiveness rather than the exclusion of religion from school board policy discussions. The Court held that

One might understand this passage as performing, or at least gesturing at, cooperative overdetermination. The language of secularism, a value associated with a liberal perspective, is read to create space for religious viewpoints in public decisions, a result more consistent with conservative preferences. Adding another layer, the result is justified through the more liberal value of inclusion. On the other hand, once the value of inclusion is cited, it functions to exclude those perspectives that would themselves be exclusive of other members of the school board's parent and student population. This more liberal result is not justified through a particularly conservative value.

Despite Kahan's examples of cooperative overdetermination, he does not cite any examples of expressive overdetermination's requirement of candor. I think one would be hard pressed to find such a decision in the contemporary Canadian context as well, especially where the judge was candid about the impact of their religious background on their decision-making. To imagine what such a decision might look like, consider Chamberlain again. While the above-cited passage relies on the value of “fairness,” it presupposes a view of fairness that treats all worldviews as presumptively equal. The Court does not explain the basis for this presumption, and the requirement of candor is thus arguably not met. The decision might have been more candid had it made reference to a comprehensive perspective that justified the equal recognition of all social groups. This could be done with reference to a monotheistic God who creates all people in a divine image, or with reference to a Taylorian view, which holds that, at least presumptively, all cultures are entitled equal recognition and respect because they have provided a horizon of meaning for many people over a long period of time.Footnote ⁷¹

While this kind of candid judicial reasoning might satisfy a desire for transparency and provide fuller justification for a particular decision,Footnote ⁷² it raises challenges related to the legitimacy concerns I discuss above. The gravity of such concerns is especially apparent when viewed from the perspective of the litigant. Litigants have a legitimate interest in providing courts with all the arguments that might assist their case.Footnote ⁷³ If appearing before a judge who has cited Catholic texts in the past, the litigant might want to show how their arguments are consistent with Catholic doctrine. If both sides to a dispute are self-represented, a litigant who shares the judge's religious perspective may have a perceived advantage in constructing an argument that can better convince the judge in a difficult case. Even assuming that litigants would have similar access to advocates skilled in tailoring arguments to particular judges, legitimacy problems remain. The advocate speaks for the litigant. It does not accord with religious freedom to encourage litigants, even through their counsel, to make arguments in a state court based on a comprehensive view that is not their own rather than some potentially shared principle. The implications for litigants’ (and other legal subjects’) liberty and equality interests are a high price for the greater transparency that would be gained by a judge explicitly referring to the comprehensive doctrine that guided their decision.Footnote ⁷⁴

The notion of judicial self-consciousness may provide a compromise solution to this dilemma, and offer an alternative to both the public reason and expressive overdetermination models. In the context of encouraging judicial openness to different forms of gender, Jennifer Nedelsky writes that self-consciousness is the best hope for judges to become aware of their prior commitments:

This kind of self-consciousness would be similarly helpful for judges to reflect on how their prior moral and religious commitments inform their decision-making. A change in the practices of judicial decision-making that encourages judges to be conscious of their own situated perspectives might be the most practical solution to the competing demands of transparency and the avoidance of the state's adoption of a particular comprehensive perspective.Footnote ⁷⁶

Modak-Truran has engaged with these competing demands, and advocates this kind of self-consciousness with respect to religion. Because he writes in the American context, Modak-Truran is particularly concerned with the possibility that a judicial decision citing a particular religious doctrine would violate the Establishment Clause in the First Amendment to the US Constitution.Footnote ⁷⁷ Although other states’ constitutional documents, such as Canada's, may not contain a similar provision, the normative concerns regarding the official adoption of a particular religion apply. Indeed, since the early days of Charter litigation, Canadian courts have held that laws with a religious purpose are unconstitutional, showing judicial support for non-establishment,Footnote ⁷⁸ reframed in the more recent jurisprudence as religious neutrality.Footnote ⁷⁹ Arguably, the same logic would apply to judicial decisions that purposely relied on the dictates of a specific religion.

Modak-Truran argues, however, that there is an alternative that recognizes the inevitability that judges will draw on their own comprehensive doctrines and avoids the potentially unconstitutional results created by the direct citation of religious doctrines. The crucial first step is the recognition that there are various stages to the adjudicative process. “Deliberation and explanation are separate stages of judicial decision making that should be kept distinct.”Footnote ⁸⁰ For Modak-Truran, direct engagement with religious views (recalling that Modak-Truran adopts a very wide understanding of religion) is necessary and should be carried out in the deliberation stage. However, given the problems posed by the explicit reference to religious traditions in judicial reasons, “judges’ religious convictions should only implicitly inform the legal explanation of their decision in their written opinions.”Footnote ⁸¹

Modak-Truran's model is appealing in that it is more realistic about judges’ propensity (indeed their need) to draw on their own moral perspectives, particularly to resolve difficult cases. In Stephen Carter's terms, this view is less “denigrating” to religion than the mainstream view, which expects judges to isolate and compartmentalize their religious beliefs when engaging in the act of judgment.Footnote ⁸² This model recognizes that religious beliefs can serve an important function for the adjudicative process. On the basis of their comprehensive perspectives, judges can continuously reevaluate the legal principles and extra-legal norms established by previous decisions.Footnote ⁸³ Further, consistent with the more nuanced view of religion as being related to reason, rather than being opposed to or independent of it, new cases can cause judges to reflect critically on their own normative commitments.

The self-consciousness model also avoids some of the legitimacy problems posed by judges’ explicit reference to comprehensive perspectives because the cases are explained only on the basis of noncomprehensive norms. Because these norms may be justified by a number of comprehensive norms, a reasonable pluralism (to use Rawls's phrase) of comprehensive perspectives is maintained and the Establishment Clause is not violated. This, in Modak-Truran's view, provides a principled basis for maintaining the law's indeterminacy,Footnote ⁸⁴ leaving the decision as something like an “incompletely theorized agreement”Footnote ⁸⁵ (or perhaps disagreement, if there is a dissenting view).

Though Modak-Truran's view of how judges should behave is quite different from Rawls's, the use of Rawls's concept of “reasonableness” is justified here because not every comprehensive perspective agrees on noncomprehensive norms. To return to the Chamberlain example, the noncomprehensive norms relied upon by the Court for its definition of “secular” were “accommodation, tolerance and respect for diversity.”Footnote ⁸⁶ Despite the high rhetorical currency of these notions in many circles, not all comprehensive doctrines would necessarily ascribe to them, at least as they are relied upon by the Court. Some religious traditions might draw the boundaries of tolerance in different places; critics on the left have also rejected the language of tolerance as a mechanism for the depoliticization of legitimate disputes and a tool for justifying military campaigns.Footnote ⁸⁷ In other words, all decisions might attract disagreement among judges or citizens, which may sometimes be on the basis of comprehensive doctrines; this disagreement might simply be the price of a functioning judicial mechanism that seeks to resolve disputes with some finality.

Despite Modak-Truran's attempt to reconcile Establishment Clause concerns with the recognition that moral judgments presuppose an answer to basic existential questions, it might still be argued that the legitimacy problems posed by judges imposing their own comprehensive norms on others remain. Because the model prohibits judges from referring to their comprehensive norms in the explanation phase of adjudication, some may see the legitimacy problem as intensified. Not only does the judge apply their own comprehensive view to resolve the dispute, but they do so as an open secret. An objector might posit that, at the very least, litigants and members of the public should be entitled to know all the bases of a decision that implicates their interests, in order to be able to subject that decision to the proper scrutiny. In defense of the self-consciousness model, however, the legitimacy predicament will persist as long as humans carry out the work of judgment on behalf of the state. People cannot help but have some comprehensive view or metaphysical assumptions even if they are not fully aware of these. The best hope, then, is for judges to be more fully self-conscious of this fact, and use their comprehensive view in order to strengthen their own decisions by providing a source for the reevaluation of noncomprehensive norms.Footnote ⁸⁸ As such, while the written decisions may look like the kind of reasons that Rawls would endorse due to the deliberate omission of comprehensive views, the method for arriving at these views is quite different from what Rawls might have advocated.

If judges are to understand the impact of their prior commitments on their reasoning process in order to verify whether their reasons are justifiable to those who do not share their reasons, the first step is to engage directly with their religious or other comprehensive perspectives. Writing of ways to reduce the impact of stereotypes on judgment, Gary Blasi notes: “[a]wareness by targets of these paths to prejudice is generally a condition precedent to reducing their effects … none of us can do much about prejudices of which we are completely unaware.”Footnote ⁸⁹ This may seem counterintuitive. If one wants to reduce the impact of a stereotype or a religious norm, why talk and think more about them?Footnote ⁹⁰ Because without being explicitly engaged, these prior notions can operate as “silent arguments,” and the best way to subject them to scrutiny is to consciously answer them.Footnote ⁹¹

Judicial institutions already have some mechanisms that can encourage judges to reflect on whether their judgments are justifiable to someone who does not share their comprehensive view. The existence of appellate courts and the possibility of reversal provides an incentive for judges to ensure their reasons are persuasive to an audience that might not share their worldviews. In some circumstances, the institution of multi-member panels has been shown to have a constraining effect on judicial decision-making. The presence of a “whistleblower judge”—one who does not share the policy preferences of their colleagues and could expose them for disobeying precedent—“significantly increases the chances that the court majority will follow doctrine.”Footnote ⁹² Even where precedent is not fully controlling, “whistleblowers” might call attention to the reasons of their colleagues that they believe cannot be shared across comprehensive perspectives. In this regard, efforts to diversify the benchFootnote ⁹³ (for example, in terms of gender, ethnicity, race, religious background, social class) could serve as an additional check on the background assumptions that might inform judgment. There is reason for some caution here, however, as a recent study found no evidence of panel effects in religious freedom cases brought in the US Federal Courts.Footnote ⁹⁴

In addition to the above, we might imagine other methods by which judges could engage more directly with their religious and other normative priors on an explicit and regular basis. There are, however, challenges specific to the judicial setting in institutionalizing practices that encourage self-consciousness in other fields. For instance, scholars who employ qualitative methodsFootnote ⁹⁵ often rely on a journaling process to examine how their own “conceptual baggage”– assumptions, beliefs, backgrounds, expectations—“influences knowledge production and reproduction by affecting what questions are asked, from which angle issues are taken up, what social realities are considered worth pursuing, and which group's experiences are legitimized and theorized.”Footnote ⁹⁶ Engaging with this baggage explicitly and in writing helps researchers assess the effect of their experience on their research. They can then incorporate these insights into the research design.Footnote ⁹⁷

A similar practice might be useful for judges in order to make clear to themselves the potential unconscious effects that their backgrounds have on the ways they read, hear, and reason through cases. The obvious downside with this method is that I expect it would be hard to convince judges to adopt it. While training in this method could be integrated into what Canada's National Judicial InstituteFootnote ⁹⁸ calls the “craft of judging,”Footnote ⁹⁹ judges are likely to be skeptical of journaling reflexively because of the unfamiliarity of the process. Moreover, many judges have a full docket and may have to make many decisions in the same week.Footnote ¹⁰⁰ Persuading them to add this step to their process, which is time-consuming and cognitively taxing, would be a hard sell.

Another approach would be to engage in dialogue with another person in order to uncover and assess the judge's “conceptual baggage.” This would work best if the partner in dialogue did not share the background of the judge (for example, the person has different religious traditions, political affiliations, or socioeconomic status). As Kahan points out, people are much more likely to see the flaws in the underlying facts and assumptions that support a position they do not share.Footnote ¹⁰¹ Such a role might, in theory, be fulfilled by the judge's law clerk. The biographers of Chief Justice Dickson and Justice Wilson write that those justices encouraged their clerks to serve as sounding boards and challenge their ideas.Footnote ¹⁰² Further, “the norm is that the chamber of each justice prepares for oral argument independently,”Footnote ¹⁰³ which suggests that there is already a stage in the decision-making process where a justice can exchange ideas with their own clerks without knowing other justices’ position (though clerks may share ideas among themselves), which may assist in keeping comprehensive doctrines implicit rather than explicit in the final decision.

On the other hand, Emmett Macfarlane's interviews of Supreme Court of Canada justices and law clerks show that not all judges engage with their clerks in the same open way as Justices Wilson and Dickson reportedly did. One justice “tells the clerks at the start of each year that they ‘are not there to be advocates.’”Footnote ¹⁰⁴

Skepticism about using law clerks in this way is also supported by empirical research from the US, which suggests that justices at the Supreme Court and judges at the Federal Courts are increasingly likely to hire law clerks with policy preferences similar to themselves.Footnote ¹⁰⁵ Moreover, the power imbalance between judge and clerk might be a serious impediment to the kind of open conversation that would be beneficial. As such, an existing law clerk would seem a poor choice in assisting a judge to attain more self-conscious reasoning.

Father Ron Davis, who served for many years as a trial and then appellate judge in California and later became an Episcopalian priest, has previously suggested drawing on local clergy in a volunteer capacity as dialogue partners.Footnote ¹⁰⁶ However, adding a new person into the equation of judicial decision-making raises a fairness problem: the parties do not have an opportunity to make representations with respect to this person's views. A discussion on the merits of matters that were not argued in open court is arguably quite different than a conversation between a judge and their clerk on the merits of the arguments raised by the parties.

In sum, there are practical obstacles to implementing a journaling practice in that it would be a time-consuming task about which many judges are likely to be skeptical. Even if there was some political will behind implementing such an idea, principles of judicial independence would likely preclude a legislature from making such a practice mandatory. As to allowing judges to explore their “conceptual baggage” in conversation with another person, there are both principled and practical obstacles. There are legitimate fairness concerns with such a practice, and the time required for such conversations and potential costs if the dialogue partners were remunerated make the adoption of such a practice unlikely. Perhaps the challenges of implementing these practices in the judicial context partially explains why judicial self-consciousness can prove elusive. In an adversarial system, judges must usually decide based on facts and law that have been argued by the parties. Their schedules are busy and they may legitimately feel pressed to deliver judgments in a reasonable time in order to do justice between the parties; adding new steps to their decision-making is unlikely to be popular among them. Perhaps the best that can be hoped for is to enhance judicial education about increasing self-consciousness.