Process, Outcomes and the Invention of Tradition: The Growing Importance of the Appearance of Judicial Neutrality.

Anne Richardson Oakes, Birmingham City University, Birmingham,UK

Abstract

When the U.S. Supreme Court in Caperton v. Massey ruled that judicial recusal under the Due Process clause did not depend upon proof of actual bias but required reference to an objective standard, it asserted the importance of appearance as an aspect of judicial legitimacy and brought this aspect of its jurisprudence into line with that of the European Court of Human Rights. The formulations of both jurisdictions reference the same common law tradition of procedural fairness but now draw divergent conclusions concerning the implications for judges who use technical advisors. This paper explores the tension between process and outcomes which this divergence exposes. It takes the view that the current emphasis on appearances represents a repositioning of recusal jurisprudence within the context of a normative tradition to reflect contemporary concerns with a perceived loss of confidence in the integrity of the institutions of public life. It argues that the consequent priority accorded to matters of form as opposed to substance rests on a model of the importance of free-standing or dignitary procedural values which appears to be supported by the empirical findings of social scientific research but pays insufficient attention to the role of correct judicial outcomes as a basis for public trust and is, to that extent flawed. It concedes that courts will be reluctant to base recusal decisions upon popular suspicions which have no factual basis to support them and recognizes the argument that an excessive preoccupation with issues of transparency and accountability may itself have negative repercussions in terms of public trust. Nevertheless, to the extent that there is in the popular imagination at least a disconnect between matters of appearance and matters of institutional integrity upon which legitimacy depends, this paper considers that as a contribution to an emerging jurisprudence of appearances the development represents an appropriate contemporary response.