Socioeconomic Bias in the Judiciary

Cleveland State University EngagedScholarship@CSU Cleveland State Law Review Law Journals 2013 Socioeconomic Bias in the Judiciary Michele Benedetto Neitz Golden Gate University School of Law Follow this and additional works at: https://engagedscholarship.csuohio.edu/clevstlrev Part of the Courts Commons How does access to this work benefit you? Let us know! Recommended Citation Michele Benedetto Neitz, Socioeconomic Bias in the Judiciary , 61 Clev. St. L. Rev. 137 (2013) available at https://engagedscholarship.csuohio.edu/clevstlrev/vol61/iss1/6 This Article is brought to you for free and open access by the Law Journals at EngagedScholarship@CSU. It has been accepted for inclusion in Cleveland State Law Review by an authorized editor of EngagedScholarship@CSU. For more information, please contact . SOCIOECONOMIC BIAS IN THE JUDICIARY MICHELE BENEDETTO NEITZ* ABSTRACT Judges hold a prestigious place in our judicial system, and they earn double the income of the average American household. How does the privileged socioeconomic status of judges affect their decisions on the bench? This Article examines the ethical implications of what Ninth Circuit Chief Judge Alex Kozinski recently called the “unselfconscious cultural elitism” of judges.** This elitism can manifest as implicit socioeconomic bias. Despite the attention paid to income inequality, implicit bias research and judicial bias, no other scholar to date has fully examined the ramifications of implicit socioeconomic bias on the bench. The Article explains that socioeconomic bias may be more obscure than other forms of bias, but its impact on judicial decision-making processes can create very real harm for disadvantaged populations. The Article reviews social science studies confirming that implicit bias can be prevalent even in people who profess to hold no explicit prejudices. Thus, even those judges who believe their wealthy backgrounds play no role in their judicial deliberations may be influenced by implicit socioeconomic bias. The Article verifies the existence of implicit socioeconomic bias on the part of judges through examination of recent Fourth Amendment and child custody cases. These cases reveal that judges can and do favor wealthy litigants over those living in poverty, with significant negative consequences for low-income people. The Article contends that the American Bar Association (ABA) Model Code of Judicial Conduct (the Code), the document designed to regulate the behavior of judges, fails to effectively eliminate implicit socioeconomic bias. The Article recommends innovative revisions designed to strengthen the Code’s prohibition against bias, and suggests improvements to judicial training materials in this context. These changes will serve to increase judicial awareness of the potential for implicit socioeconomic bias in their judicial decisions, and will bring this issue to the forefront of the judicial agenda. * Professor of Law, Golden Gate University School of Law, San Francisco, California. The author served as a law clerk for the Honorable Napoleon A. Jones, Jr., in the Southern District of California. I am grateful to Professor Deborah L. Rhode, Professor Eric C. Christiansen, Professor Kathleen Morris and Jennifer Pesetsky for their thoughtful comments on earlier drafts. I appreciate the assistance of research assistants Sharon Alkire and Richard Hullinger. This Article is dedicated to Wiley Neitz. ** United States v. Pineda-Moreno, 617 F.3d 1120, 1123 (9th Cir. 2010) (Kozinski, C.J., dissenting). 137 Published by EngagedScholarship@CSU, 2013 1 138 CLEVELAND STATE LAW REVIEW [Vol. 61:137 I. INTRODUCTION .................................................................... 138 II. THE CHALLENGES OF IDENTIFYING IMPLICIT SOCIOECONOMIC BIAS ......................................................... 142 A. The Economic Status of Judges ................................... 142 B. Socioeconomic Bias vs. Class Privilege ...................... 143 C. The Challenge of Identifying Socioeconomic Bias ...... 144 1. The ABA Model Code of Judicial Conduct’s Prohibition of Socioeconomic Bias .... 144 2. The Unique Nature of Socioeconomic Bias ......... 146 3. The Challenge of Identifying Implicit Bias .......... 149 i. The Implicit Association Test ........................ 150 ii. How Can We Measure Implicit Socioeconomic Bias? .................................... 152 III. IMPLICIT SOCIOECONOMIC BIAS IN FOURTH AMENDMENT AND CHILD CUSTODY CASES ......................... 154 A. Implicit Socioeconomic Bias in Fourth Amendment Cases ........................................................ 154 B. Implicit Socioeconomic Bias and Child Custody Determinations .............................................. 158 IV. PROPOSED RECOMMENDATIONS .......................................... 161 A. Judicial Discipline: An Ineffective Solution ................ 161 B. Clarifying the ABA Model Code of Judicial Conduct........................................................................ 162 C. Judicial Trainings ........................................................ 163 V. CONCLUSION ....................................................................... 165 I. INTRODUCTION In the early 1970s, Robert William Kras asked the United States Supreme Court to allow him to proceed in bankruptcy court without paying the requisite filing fees.1 Mr. Kras lived in a small apartment with multiple extended family members and his younger child was hospitalized with cystic fibrosis.2 Mr. Kras had been unemployed for several years, after losing his job with a life insurance company when the premiums he had collected were stolen out of his home.3 His wife had to give up her employment due to her pregnancy, and she was focused on caring for their ill son. The family lived on public assistance benefits and had no real assets.4 1 United States v. Kras, 409 U.S. 434, 437 (1973). 2 Id. 3 Id. 4 Id. at 438. https://engagedscholarship.csuohio.edu/clevstlrev/vol61/iss1/6 2 2013] SOCIOECONOMIC BIAS IN THE JUDICIARY 139 Mr. Kras was indisputably living in poverty. Hoping to improve his prospects for future employment, Mr. Kras desired a discharge in bankruptcy. However, Mr. Kras was turned away before he even reached the bankruptcy courtroom because he could not afford the $50 in filing fees to submit his bankruptcy petition.5 The Supreme Court denied Mr. Kras’s request to waive his filing fees, holding that the statute requiring payment of fees to access bankruptcy courts did not violate the United States Constitution. The majority opinion, written by Justice Blackmun, noted that the filing fees, when paid in weekly $1.92 installments, represented a sum “less than the price of a movie and little more than the cost of a pack or two of cigarettes.”6 Justice Blackmun declared that if Mr. Kras “really needs and desires [bankruptcy], this much available revenue should be within his able-bodied reach.”7 Using disparaging (...truncated)