Actual Versus Perceived Performance of Judges

Abstract

Claims of judicial bias are easy to make, but studies supporting such claims often use flawed methodology. Claims may be based on incomplete samples of a judge’s work or fail to account for the case assignment process’ influence on the merits of the judges’ cases. This Article explores the relation between perceptions of bias and the underlying reality of judicial behavior. It reports the results of a survey of the Israeli legal community’s perceptions of Israel Supreme Court justices’ preferences in criminal cases and compares the survey results with justices’ actual votes in two years of criminal cases. Justices’ actual voting patterns in mandatory jurisdiction criminal cases are not correlated with pro-state or pro-defendant perceptions of them. Justices’ votes in the much smaller pool of discretionary jurisdiction cases are more consistent with perceptions of justices’ positions than are their votes in mandatory cases. Media reports of justices as pro-state or pro-defendant also correlate reasonably well with perceptions of justices. Perceptions of justices’ tendencies vary significantly across subgroups of the legal community with some evidence suggesting that both state and defense attorneys tend to view justices as hostile to their clients’ positions. Our findings suggest that a legal community’s perceptions of highly visible judges on a country’s highest court, can substantially differ from judges’ actual behavior in the mass of cases.