Actual Versus Perceived Performance of Judges

Perceptions of judges ought to be based on their performance. Yet, few studies of the relation between perceived and actual judicial performance exist. Those claiming judicial bias should be especially sensitive to the relation between perception and performance. Judges perceived by the public or by the legal community as disfavoring a group may be regarded as biased, but that perception is unfair if the judges’ votes in cases do not disfavor the group.

For example, it may be unfair to accuse an appellate judge of pro-state bias in criminal cases if the judge votes for defendants at a higher rate than several other judges on the same court. This article addresses whether perception matches reality. Several studies have examined perceptions of judges and courts by surveying the public about its confidence in a particular court.1 Our study differs because it compares perceptions of individual justices with their actual voting patterns. Incomplete samples are one source of distorted claims about judicial behavior.

Excluding a particular group of outcomes, such as unanimous decisions, can lead to questionable results.2 Studies regularly report that a judge’s political affiliation, race, or sex is associated with case outcomes—results that sometimes raise inferences of bias.3 At the trial-court level, most studies are limited to available opinions, a known source of possible distortion.4 These studies also tend to exclude cases that end via settlement, which is the modal outcome in civil litigation.5 Several trial-court-level studies that use complete case samples and find no political or other effects suggest the importance of complete case samples.6