Dealing with Judicial Biases, By Ian Wilson LL.B

The Daily Sceptic, published an article titled "Who Will Hold Politically Biased Judges to Account?"by Australian academic Ramesh thakur, which while focussed upon the US and UK is relevant to Australia as well, as a common law country.

https://dailysceptic.org/2025/03/27/who-will-hold-politically-biased-judges-to-account/

The article, written by Ramesh Thakur, highlights a perceived crisis in judicial impartiality, particularly in the U.S. and U.K. It points to the statistic that 96 percent of U.S. law professors are Democrat donors, suggesting a deep ideological skew within the legal profession that extends to the judiciary. This imbalance, Thakur argues, reflects an "extreme anti-conservative bias" that threatens the rule of law by allowing judges to impose politically motivated rulings rather than adhering to neutral legal principles. He cites the example of Judge Boasberg, whose decisions allegedly obstructed President Trump's voter-approved agenda, as evidence of judicial overreach driven by bias. In the U.K., the article references the Sentencing Council's proposal to reduce penalties for illegal entry, framing it as a sign of a judiciary "captured by an unaccountable Leftist cabal." The broader claim is that such biases erode public trust in the legal system, turning courts into political battlegrounds rather than arbiters of justice.

The problem, as presented, is that judges, who are supposed to uphold the rule of law—defined as a system where laws are applied consistently, fairly, and independently of political influence—are instead using their authority to advance partisan agendas. This undermines the foundational principle that the law should be a neutral framework, not a tool for ideological enforcement. When judges rule based on personal or political leanings rather than legal merit, it risks creating a perception of "two-tier justice," where outcomes depend on alignment with judicial biases rather than objective standards.

Biased judges undermine the rule of law by compromising its core tenets: impartiality, predictability, and accountability. If judicial decisions reflect ideological leanings—like the alleged liberal tilt in the U.S. legal academy or the progressive capture suggested in the U.K.—then the law ceases to be a reliable, neutral umpire. Instead, it becomes a weapon for settling political scores or entrenching power, as seen in the article's critique of activist judges delaying Trump's policies. This unpredictability erodes public confidence, as citizens cannot trust that legal outcomes will be consistent or fair, especially if they suspect rulings favour one political side over another.

Moreover, the lack of effective mechanisms to hold biased judges accountable exacerbates the issue. The article notes that impeaching a judge like Boasberg is politically unfeasible given the U.S. Senate's composition, leaving appellate review as the primary check. Yet, if higher courts are similarly biased—or if the Supreme Court, as Thakur suggests, shies away from confrontation due to "institutional timidness"—this check fails. In the U.K., the Sentencing Council's apparent autonomy from democratic oversight further illustrates how judicial bodies can drift into unaccountable policymaking, effectively rewriting laws under the guise of interpretation. This blurs the separation of powers, allowing unelected judges to usurp the role of legislators and executives, which directly contradicts the rule of law's demand for clear jurisdictional boundaries.

On the flip side, one could argue that judicial bias is overstated or inevitable. Judges, as humans, will always bring some perspective to their rulings, and the adversarial legal system—where appeals can correct errors—mitigates the damage. The article's examples, like the Sentencing Council's proposal, could be seen as pragmatic adjustments rather than ideological crusades. However, this defence falters when bias appears systemic (e.g., the 96 percent Democrat donor statistic) or when rulings consistently align with one political faction, as Thakur claims. Even if bias is unintentional, its perception alone can delegitimise the judiciary, fuelling distrust and calls for radical reforms that might further destabilise the legal order.

In short, biased judges threaten the rule of law by injecting politics into a domain meant to transcend it. Without robust accountability—beyond the slow grind of appeals or rare impeachments—the system risks becoming a reflection of judicial whims rather than a guardian of justice. The article's call for a solution remains unanswered, but its warning resonates: if the judiciary is seen as a partisan player, the rule of law itself hangs in the balance.

https://dailysceptic.org/2025/03/27/who-will-hold-politically-biased-judges-to-account/

"As the firewalls of resistance to populist advance crumble one by one under assault from enraged voters, the final frontier of elite resistance is the courts. The legal clerisy as part of the ruling elite is the last line of defence for safeguarding victories already won by social justice warriors in their long march through the institutions.

Like other professions, the judiciary too is fallible. Every country with a credible rule of law every so often has wrongful convictions from the past. Among the best known Australian examples are those of Lindy Chamberlain and Cardinal George Pell. Judges are also individually fallible. Cardinal Pell was convicted by jury verdict, the conviction was upheld 2-1 by the state appeals court but overturned unanimously by the High Court. Same laws, same evidence, different judgments.

Not every judge is a paragon of judicial integrity and competence. Some are corrupt and guilty of other acts of malfeasance. Many more, I suspect, are incompetent. Mechanisms for acknowledging incompetence are fewer and less frequently invoked than for detecting and punishing corruption and malfeasance. Yet even the latter cannot always be relied upon.

There is an interesting scandal playing out in India even now. A judge of the Delhi High Court, Justice Yashwant Varma, has been implicated in a possible corruption scandal only because firefighters and police officers who attended his house in flames discovered sackfuls of cash. The hint of corruption would likely have gone entirely undiscovered but for the fortuitous fire, which is in itself an indictment of the inadequacy of oversight mechanisms for judges.

Just like other branches of government, the judiciary collectively and judges individually are capable of judicial overreach and in need of being put back in their lane. Not all judges have the necessary self-awareness and strength of character to avoid the temptation to abuse their powers and authority. On the contrary, the legal profession has a collective self-interest in expanding the reach of its authority over all other sectors and, conversely, to protect itself from pushback by others.

Finally, there must be ways and means to reconcile the slow and deliberative process of judicial decision-making with the need for sometimes urgent action by the executive. The judiciary is habituated into its own sequence and pace of actions. Thus for judges, the ultimate acquittal of Cardinal Pell by the High Court was a triumph of institutional and process. To ordinary mortals, the process itself was a harsh punishment and the 405 days that the aging cardinal spent behind bars was an unforgivable miscarriage of justice before death in January 2023.

In the US, more than 125 lawsuits were filed in Trump's first two months challenging his policies, mostly against efforts to downsize government departments and agencies. In just one day, district judges ordered a halt to Trump's executive orders to dismantle USAID, the reinstatement of DEI grants by the Education Department, a stay on the ban on transgender members of the military and a pause on deportation flights of alleged Venezuelan gang members. Trump called James Boasberg, the judge in the latter case, a "troublemaker and agitator" Obama judge who "should be IMPEACHED!!!"

An analysis in the Journal of Legal Studies in 2018 concluded that in 2012, 35% of American lawyers and a mere 15% of law professors were conservative. At the time, voters identifying as conservative outnumbered liberals 35-24 and conservatives controlled all three branches of the federal government and more than two-thirds of state governorships and legislative assemblies.

The pathology of ideological uniformity and misalignment with public sentiments has worsened quite considerably since then. Derek Muller of Notre Dame University examined political donations by law professors by political party from 2017 to early 2023, showing 95.9% gave money only to Democrats, 2.7% to Republicans and 1.5% to both parties. Every single one of over 100 institutions that Muller looked at had more registered Democrats than Republicans in the law faculty, mostly by large margins. Does anyone seriously believe this does not lead to an ideological disconnect between the legal-judicial clerisy in courtrooms and the American people?

Senior Trump adviser Stephen Miller says a district court has "no ability to in any way restrain the President's authority under the Alien Enemies Act". Regardless of legal scholars' learned opinions, most voters will likely side with the administration that the scale of migration across the southern border in the Biden years meets the threshold of "an invasion or predatory incursion" under the Alien Enemies Act, justifying their arrest and removal.

Critics warned of an "assault on the entire constitutional order in America". In a rare public rebuke, Chief Justice John Roberts (who stayed silent when a roll call of Democrats called for impeachment of judges) said "for more than two centuries, it has been established that impeachment is not an appropriate response to disagreement" on judicial decisions. Instead, "the normal appellate review process" provides the proper remedy.

Roberts ignores a basic cause of the looming constitutional crisis. Who holds the judiciary to its limits? National injunctions from district courts are rare when Trump isn't involved. According to an article in the Harvard Law Review last year, there were a total of 127 from 1963 to the start of 2020. More than half – 64 – were against the first Trump administration. In February alone this year there were 15 against Trump II. National injunctions inevitably encourage activists to lodge a case in a jurisdiction and with a judge likely to be sympathetic. They also "tend to force judges into making rushed, high-stakes low information decisions", Justice Neil Gorsuch noted in a 2020 Supreme Court judgment. An alternative interpretation to the alarmist 'constitutional crisis' therefore is that Trump's actions may help to restore constitutional integrity and democratic accountability by stripping power and resources from the bloated administrative state and returning them to Congress and the executive.

Given the composition of the Senate, any effort to impeach Judge Boasberg isn't a feasible political proposition. That's different from assessing the legality of the action. Impeachment can be abused when wielded as a weapon or function as a guardrail. An isolated bad decision can be handled by the normal appellate review process. A pattern of rulings that give rise to an apprehension of bias can be an impeachable offence. Moreover, the crisis has intensified to this point because of the Supreme Court's institutional timidness-cum-cowardice.

A predictable consequence of Roberts's public if implicit scolding of Trump was to embolden activists judges and NGOs in their efforts to delay and obstruct the President from implementing his voter-approved policy agenda. For, contrary to his assertion, the appellate process has not been working efficiently. The Supreme Court needs to step in fast to rein-in judicial overreach by district court judges and adopt orderly systems of adjudication of urgent matters. Utah Senator Mike Lee (a Republican) has proposed a law requiring a three-judge panel from different circuits – two district judges and one court of appeals judge – to rule on challenges to Presidential orders, with the possibility of appeal directly to the Supreme Court.

Nor is the problem confined to the US. In February 2020, the High Court of Australia, the country's top court, decided in a controversial 4-3 split verdict in the Love v Commonwealth case that a non-citizen Aboriginal Australian is not an 'alien' under the constitution. It might help readers to understand how and why this strange reading of the constitution came about by considering a current controversy. Over the last couple of weeks, the Australian has featured a series of articles on racial and gender indoctrination by Macquarie University's law school courses, on pain of failing grades for wrong-think. Can graduates of such schools who sit on judicial benches in due course be expected to rule free of their ideological indoctrination?

Queensland University's James Allan, one of the very few conservative law professors in Australia, points out that when PM Boris Johnson prorogued the UK Parliament in order to get Brexit through, "all Remainer UK Supreme Court judges overturned three centuries of precedent" and ruled his action to be unconstitutional even though the country has no written constitution. Despite this relatively recent precedent from the mother of parliamentary democracy, the Canadian Supreme Court upheld PM Justin Trudeau's power to prorogue Parliament, which he had used to avert a no confidence motion and buy his party time to choose a new leader under whom to face the next election (since called for on April 28th).

Prime Minister Keir Starmer, perhaps the most ardent supporter of the rule of law among world leaders, complained on March 13th about "a sort of cottage industry of checkers and blockers using taxpayer money to stop the Government delivering on taxpayer priorities". In Australia, the UK and several European countries, immigration judges have been astonishingly inventive in stopping governments from expelling even hardened criminals.

As many Western democracies reach an inflection point on mass immigration, courts have become the place where democracies go to die."