The job of a judge is inherently political; people who forget this do so at their own peril. At the same time, though, this doesn't mean that judges should be closely aligned with the politics of their day. Judges must remain as independent as possible from these political winds because genuine justice demands it.

In Hitler’s Prisons: Legal Terror in Nazi Germany, Nikolaus Wachsmann writes:

The legal system was ultimately responsible for dealing with the perpetrators of political disorder and violence. But many German judges were anything but impartial. Authoritarian, nationalist and largely opposed to the new democratic regime, they had some political sympathy for the radical right-wing activists who attacked the republic. Often, these counter-revolutionaries were let off very lightly, even for brutal violence and murder.

In contrast, the judges cracked down with extreme vigour on radical left-wingers, triggering heated protests in the press, parliament and on the streets against what Communists and socialists called ‘class justice’. But the judges were not deterred and German penal institutions in the early 1920s were filled up with left-wing radicals who often faced very long sentences under poor conditions.

The biased treatment of political offenders often extended from the court room to prisons and the penitentiaries. Counter-revolutionaries sentenced to imprisonment frequently enjoyed lenient treatment. Their imprisonment was often short, and served in rather cosy conditions.

German judges took sides in politics, and the consequence was that they treated people differently based upon their political leanings. Justice wasn’t done in either case: right-wing criminals didn’t get what they deserved while left-wing criminals got far more. This was the justice system which the Nazis were able to take over: a system which was already too political and ideologically corrupted.

To what degree does the current American justices look like what was done in Germany? Certainly American judges don’t engage in disparate treatment of political revolutionaries, but there is a well-documented difference in how white defendants are treated from various racial minorities. In the American case, it’s unlikely that very much of this is due to conscious bias like in Germany, but unconscious bias isn’t really better, is it?

This is also a cautionary tale for those who would evaluate our courts based upon results rather than process. Disagreeing with the results of a case is understandable, but serious argument against the results must be based upon problems with the process and reasoning, not merely the idea that the results are somehow “wrong.”

 

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