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As per these Law.SE questions (one, two), judges whose decisions get overturned on appeal experience no repercussions other than getting their egos hurt and, sometimes, name-shame/outrage in the media.

It seems a bit strange that modern democratic societies haven't adopted some mechanism to incentivize judges to avoid making errors (or "errors", meaning when they are not quite inadvertent). Like, for example, if a judge gets overturned 3 times, they lose their job forever, and lose the right to receive their special pension.

Generally, poorly-performing employees get fired, and the more important the job is, the less tolerance is there for mistakes. Judges are effectively employed by taxpayers to do justice for them, and the job is very important (if not critical) and very highly paid.

So, why is there no mechanism to keep judges genuinely striving to do their job to the highest possible standard i.e. making as appeal-proof decisions as they possibly can?

The only reason I can think of is that, if there was such a mechanism, then appellate judges' impartiality may become affected by how their decisions would affect the judges whose decisions they review. E.g. if an appellate judge knows that, should they overturn a decision, the original judge would be fired, and they may have some personal interest to get that judge fired (or, conversely, keep him), then their impartiality is tainted.

Is that why? Or what else am I missing?

Clarification after seeing the comments:

Of course being overruled on appeal does not always mean doing something wrong. Like some have pointed, the appellate court could simply overturn their own precedent which the lower court was only following. There could be fresh evidence at play and maybe some other good reasons why the lower court's decision was reasonable at the time.

So, the scope of the question should be read narrowed to the cases where the lower courts make errors of law which were objectively avoidable in the first place.

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  • 12
    In some cases, a judge whose decision is overturned on appeal may nonetheless have decided the case correctly, for example if the judge was following binding precedent and the appellate court overturned the binding precedent in order to reverse the judge's ruling.
    – phoog
    Jul 19, 2023 at 11:08
  • 8
    Do you have a country in mind? United States? If so, please add it as a tag
    – James K
    Jul 19, 2023 at 12:18
  • @JamesK Not really. I think the answer would be substantially the same for all jurisdictions where judges get away with making errors.
    – Greendrake
    Jul 19, 2023 at 12:26
  • This is a great question. Magistrates can make unfair judgements against groups they don't like with impunity, and either 1) the defendant can appeal and win, which is expensive and only leads at best to the status quo where they got a fair judgement in the first place (if they haven't spent time in prison already), or 2) they don't have the ability/knowledge to appeal, and the judgement stands. A magistrate can do this indefinitely with no repercussions. Some accountability mechanism wouldn't have to mean "fired", just some form of review of judges' performance would be really great Jul 20, 2023 at 5:33
  • Also related law.stackexchange.com/questions/93785/…
    – ohwilleke
    Jul 20, 2023 at 22:10

11 Answers 11

25

Many people agree that it benefits society if the judiciary is independent from pressure by the executive or by public opinion. Implementations of this principle differ, but commonly it involves the independence of the individual judge unless there is gross misconduct. Being overturned on appeal is not, by itself, seen as gross misconduct.

There could be ways to assure an independent judiciary while penalizing lower judges when they are overruled by higher judges, but doing so would work towards enforcing conformity and make the individual hestiate to go against the perceived mainstream. The result could be that judges fear to do what they think is right.

Consider that a lower court could be overruled

  • because it made a mistake of law,
  • because it made a mistake of fact,
  • because either the proseuction or the defense introduce more evidence,
  • because the higher court decides to either create new precedent or break precedent because conditions have changed.

One could imagine a situation where an overturned sentence also ticks a box for the reason of the overturn, but what if there are more than one?

2
  • The point re "enforcing conformity" with the "perceived mainstream" is interesting, but the appellate judges won't necessarily represent the mainstream. It is precisely doing what they think is wrong that the lower judges should "fear" doing.
    – Greendrake
    Jul 19, 2023 at 23:01
  • 12
    +1 Take, for example, airplane accidents investigation. There used to be (I don't know if it's still the case) a "no-punishment" approach to investigating air crashes: whenever an accident was found to have been caused by human error, light or no punishment at all was applied to those responsible. The idea was that, if innocent mistakes (another case is grave negligency or sabotage) are severely punished, most people will try to cover up and destroy evidence, thus preventing a successful investigation that would lead to adequate future prevention. That's why flying is so safe now.
    – Rekesoft
    Jul 20, 2023 at 9:34
19

The assumptions of your question are wrong: we do have such mechanisms. All judges can be removed from the bench in some fashion or another, depending on the exact situation. Federal judges can be impeached and removed by Congress. State judges may be subjected to impeachment by state legislatures, or they may simply be voted in and the voters can just opt not to re-elect them; they may also have an option for a recall vote to immediately end their term. Additionally, courts tend to be grouped up and cases distributed amongst the courts within their grouping. Normally this would be done uniformly at random among available jurists, but adjustments to the distribution can be made for a variety of reasons. In particular, Judges who have seemed problematic with certain cases may simply not be assigned them any more. While a Federal judge has their position and pay guaranteed as long as they aren't impeached and removed by Congress, their case load and docket is not. A Judge that hopes for a promotion or any sort of positive name recognition (at least within the local legal community) is incentivized to abide by judicial norms, else they may cease to get enough (interesting) cases in which to make their mark and enjoy their job.

Second, you seem to vastly overestimate the meaning of having a ruling/holding overturned on appeal. The justice system prioritizes justice, and in particular heavily favors ensuring the correct legal process and standards are applied (at least whenever they are deemed to be of meaningful consequence; minor inconsequential errors are usually kept inconsequential). The legal system is tremendously complex and constantly changing, and not every possible edge case has been seen before. The trial judge uses his knowledge, experience, and the filings of the litigants in order to understand the facts and legal landscape at hand. But errors, oversights, (accidental) reliance on outdated information and precedents, and untested waters are to be expected. They're human, after all.

Consider now if, say, a microchip producing company had an incident where an employee was carrying a batch of chips by hand and then dropped them, resulting in millions of dollars in lost product. Your approach appears to be: fire that employee. But a smart employer will realize that employees will occasionally have accidents and drop things they are carrying, and that the problem was not with this employee but with whatever the company was doing that resulted in allowing a predictable human accident to cost them millions of dollars. Why did they not have machines doing this? If they had them but they were malfunctioning or unavailable, why was that? What procedures should the company create for that situation going forward so as to prevent such problems? These are the questions a smart and efficient organization will ask and address. The same holds with the justice system: the problem is usually not that the Judge got something wrong, as this is an entirely predictable consequence of the human condition. The resolution is to resolve edge cases with a higher level of authority (setting precedent in a higher court, offering tests, etc.) and if necessary to return the issue to the judge with new, clearer instructions.

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  • 3
    (+1) Not exactly the scenario asker is inquiring about, but this local California case shows that there may even be multiple mechanisms available: " Despite allegations that race, gender, and class bias influenced his lenient sentencing of Turner (prosecutors had asked for six years), the California Commission on Judicial Performance found that there was not clear and convincing evidence of wrongdoing in their investigation of the case. Nonetheless, Persky was recalled by voters on June 5, 2018, during the 2018 California primary elections. "
    – njuffa
    Jul 19, 2023 at 23:34
  • 1
    Impeachment is supposed to be limited to "high crimes and misdemeanors" and has generally been applied in that manner. I am not aware of any judge that has ever been impeached for merely being incompetent.
    – ohwilleke
    Jul 21, 2023 at 15:43
  • 2
    @ohwilleke Well there's also the theory that the Good Behavior clause provides a second, independent basis for impeachment of a federal judge. I'm not sure it's ever been specifically invoked, though. There has at least been one impeachment, fairly recent even, where the question of whether the bar of "high crimes and misdemeanors" was met was questionable, yet still the judge was removed: the impeachment of Judge Claiborne (1986). His was not an issue of (in)competence, though. Jul 22, 2023 at 18:23
8

Judges are people, and people make mistakes and cannot always predict the future (e.g. how an appeals court will rule). Other answers have explained this in greater detail.

In Germany, there is a criminal offense called Rechtsbeugung, which a judge can commit by knowingly misapplying law. This is a fairly high bar, but I think it may be what you are looking for.

1
  • There is an ongoing case involving a family court judge who overturned a school mask-mandate during the COVID-19 pandemic; now the judge is himself in court with the prosecution arguing that family courts are not responsible so he should never have made a ruling in the first place. This example might be interesting to include in your answer.
    – gerrit
    Jul 21, 2023 at 7:20
6

You seem to be misunderstanding why a court case can be overturned and it doesn't have to be the fault of the judge.

  1. The prosecution did something wrong such as not turning over all required evidence to the defense
  2. The defense did something wrong such as not presenting all available evidence to the jury
  3. The judge ruled in accordance with the law but a later court rules against the law
  4. New evidence is discovered that impacts the result of the case
  5. Other courts ruled differently and that impacts the case
  6. The next court overturns the ruling but a higher court reverses that and upholds the original ruling.
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  • 2
    As an adjacent points to 3/5: The judge ruled in accordance to the law as interpreted by the precedents in scope for that court, but the appellate court could draw on additional precedents not binding in the original court. For example in the case of a us circuit split, the original judge is supposed to only take their circuits opinion, whilst the supreme court is supposed to take all circuits into account. Jul 20, 2023 at 2:21
  • 3
    The fact some cases are overturned NOT due to the fault of the judge doesn't explain why there is no mechanism for dealing with the situation where it IS the fault of the judge, in some cases repeatedly. Jul 20, 2023 at 5:34
  • 2
    Equally important is that correctly applying the law to real life cases as a judge is very hard and is more art than science. Even with all of the legal rules making it easy to affirm a trial court's ruling, about 3-7% of their final orders are ultimately overturned on appeal. Yet, a typical judge presides over hundreds or thousands of cases a year. A three times and you're out rule, for example, as suggested in the question, would disqualify the average judge on the bench in two or three years (considering the time it takes the appellate court to rule), and the replacement would do no better.
    – ohwilleke
    Jul 20, 2023 at 22:20
  • "2. The defense did something wrong such as not presenting all available evidence to the" ... To the? Jul 22, 2023 at 16:48
2

The assumption that "errors of law" or reversals on appeal always involve some kind of serious incompetence or misconduct is not generally justified.

Some of the best-regarded judges have been regularly reversed, most famously (or infamously) Tom Denning, who was Master of the Rolls (a senior appellate court judge) for 20 years until 1982.

Denning actually took a step down to Master of the Rolls from a previous appointment as a Law Lord (the most senior level of appeal), because in effect he preferred being a troublemaker and the lower appointment gave him more cases and more latitude.

Quintin Hogg, Lord Hailsham remarked of him: "The trouble with Tom Denning is he's always re-making the law and we never know where we are."

Yet Denning is regarded as one of the greats. I think this is because the main tension was between what Denning thought the law ought to be, and what it already was; he was most often reversed because he was thought to have gone a bridge too far in introducing sudden legal changes (often, the changes were somehow adopted later anyway, even though Denning had been reversed in the meantime).

More broadly, judges are selected in the first place from amongst experienced barristers, and that tends to be a very small world, so there is assumed to be a certain level of proven competence in legal matters.

And the difficult nature of the law means that occasional errors are to be expected.

If a judge was regarded as struggling with competence - either in a new appointment, or having taken a turn for the worse in an established appointment - they'd usually be informally encouraged to retire or return to a less demanding role.

Judges can also be removed from office, but usually that involves impropriety concerning their personal conduct, rather than the quality of their judicial reasoning.

2
  • Denning seems to be excusable as he was introducing common law changes (vs making errors in applying codified law — which a judge cannot change). These days most laws are codified. There isn't so much common law left for judges to play with.
    – Greendrake
    Jul 20, 2023 at 10:03
  • 2
    @Greendrake, the judges have always claimed to only "apply" or "discover" the law. The supposed source of the common law was the moral fabric and tradition of the community, being distinguished from statutes where the King explicitly reorganised things. I agree the crucial point with Denning is that his "errors" were generally on purpose.
    – Steve
    Jul 20, 2023 at 10:35
1

The answer is that magistrates are a powerful interest group in society who have thus far successfully resisted most attempts from liberal democracies to impose accountability on their job performance. They are composed of the social elite and they regularly mix with other social and political elites, and it is clearly in their interests to evade responsibility and oversight (as it is for anybody wielding power). The answers above illustrate this perfectly: while there are some mechanisms for judges who flagrantly break the law, such as taking bribes, there are none for if they just plain do a bad job, to the point where the other answers don't seem to even consider that possibility!

Poorly performing magistrates whose judgements tend to get appealed are much less likely to be promoted, however, so it does affect their career prospects and not just purely their egos. This sadly means that the unfortunate folks who end up before their local magistrate can have basically no confidence in the treatment they'll get.

1

Retracted after question is clarified

One mechanism I may think of: with the cases hitting multiple levels of appeal courts frequently, the lowest level of courts may no longer see themselves free to do any actual judgement.

Such judges would just examine the existing evidence collected, and will semi-mechanically apply the existing laws and law enforcement practice, and assign a sentence. If the case did not fall apart before appearing before the judge, it will almost always result in a sentence. This is done on assumption that if the defending party is not content with the result, they will appeal and perhaps get to see a real court case with judges passing actual judgements.

This is not much different with multiple tier level of tech support, where tier 3 will just look up the description of the problem, reference to some knowledge db articles, and if it did not help, escalate to tier 2. They are not expected to do any original research on the issue and in fact discouraged from doing so.

This may be especially important in centralized countries where with the top-bottom approach to governance, including judicial branch of government. A lower level judge feels their job is to apply the laws as is, not to tell who is guilty and who isn't - which they cannot do anyway with any kind of reliability in lieu of existence of appeal process.

So the answer here would be, why punish tier 3 tech support for escalating issues to tier 2?

0
1

Judges are punished for decisions that cannot withstand an appeal by the punishment of rework. A successful appeal undoes their ultimate work product, and this happens publicly. They would then generally be forced to work on the same case again, and with less authority than before, because now they are bound in more specific ways by the often snarky opinion of the appellate court.

With enough ego and laziness, and in absence of any compelling conflict of interest, a smart judge will seek out ways to predict at least the most obvious mistakes they could make, and they would try to decide their cases in a way that the equally lazy appellate court might not bother to overturn.

This is actually the very point of two-instance (as opposed to single instance or twenty-instance) organization of the judicial system.

2
  • Appellate courts can indeed remit decisions back to the original court for reconsideration, but it doesn't happen very often. Normally, they just substitute the decision.
    – Greendrake
    Jul 21, 2023 at 7:29
  • @Greendrake - That's a fair point: if fact finding was perfect, and there were solely errors of law, the case will not come back. Over 80% or 90% of the appealed rulings are upheld; that shows that first instance courts do care about applying the right law and applying it correctly. Jul 21, 2023 at 12:07
0

Judges can be removed for gross misconduct in almost all jurisdictions, but errors in law are not gross misconduct, they are self-correcting. A judge who has a case overturned because of an error in law on his or her part will make an effort to update their understanding of the relevant law. If the case is overturned because the judges interpretation of the law (opinion) is different from the appellate courts interpretation (opinion), then the law itself is open to interpretation and will be settled either by precedents or be returned to the law-makers for clarification.

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  • 3
    While this is probably true in general, there are also cases where a judge makes a ruling based on their personal beliefs rather than law or precedent. If those get overturned on appeal, the judge isn't likely to change their beliefs or go study the law.
    – Bobson
    Jul 21, 2023 at 0:33
  • @Bobson - If you mean judges like Kacsmaryk, you will find that they can defend their beliefs in law and precedent rather well, and even they push their beliefs only as far as they can defend them legally. Justice is supposed to be impartial. That gets difficult to maintain when the judiciary are elected or appointed by politicians. Most countries have professional career Judges who are able to keep their personal opinions personal, that way judges can keep each other honest without interference.
    – Paul Smith
    Jul 21, 2023 at 13:38
0

One of several mechanisms is known as a "recall election", just ask former Santa Clara County Superior Court Judge Aaron Persky about that:

https://www.newyorker.com/news/our-columnists/revisiting-the-brock-turner-case

The above article in the New Yorker presents a pretty good case as to why even that recall election was a poor choice, leading to unintended consequences. A civilized society is a society without pitchfork & torch wielding mobs, enacting vigilante justice. A civilized society requires a dispassionate and objective judiciary, which requires an independent judiciary.

...the scope of the question should be read narrowed to the cases where the lower courts make errors of law which were objectively avoidable in the first place...

Objectively avoidable? That implies judicial misconduct, and judicial misconduct certainly has penalties associated with it. I suspect when you're saying "errors of law" you may be referring to cases where a judge weighted available evidence in a manner that created the basis of a judgement which was later overturned. There is a really slippery slope in attempting to punish something like weighting.

It is important to have a judiciary that is independent, and allowed to make judgments based on the specific subtleties and nuances of a given case, and without micromanaging bureaucratic statutes. That would only serve to create an atmosphere of abject animosity, by threatening punishment beyond that of overturning a ruling. For a judge, being overturned is ample punishment, cases of judicial misconduct notwithstanding.

Perhaps a more important question is "why is there no mechanism for disciplining prosecuting attorneys who inflate charges to force plea deals" or "why are mandatory minimums permitted in our justice system as mandatory minimums remove sentencing authority from judges, who are thereby reduced to the role of a rubber-stamping bureaucrat, restricted and unable to apply a justified sentence per the nuances of a given case".

-1

Errors happen. They even happen to appelate judges. That's why appeal isn't usually the last recourse. But that highlights the big flaw in the premise of the question. Judges do make mistakes. All of them. Whether elected, appointed, professional, lay, presiding over the court, trier of fact, single, part of a panel, on first trial, on appeal, on retrial, all the way to the supremest court of the land.

If the appelate judge rules the first judge made a punishable error, how do you know that the appelate judge is right? You don't. Then you have to wonder what to do when a panel of judges is found to have rendered the wrong verdict. Again, assuming you can trust the appelate judge didn't make an error either.

An error isn't a fault. There are consequences for faults already. When a judge wilfully diverts the course of justice, there are consequences, which would probably involve criminal penalties on top of losing their jobs and the inability to do it again. So that covers all your "not quite inadvertent" needs already.

But there is no intent to an error. An error of law could simply be a difference of interpretation, it could be that a particular area of law is needlessly complex, maybe even contradictory, it could be that a case is particularly puzzling. As mentioned above, errors just happen.

Punishment doesn't dissuade errors, since errors are by nature unintended. You can't dissuade someone from doing something they don't intend to do. So it's not going to keep judges "honest". They're not dishonest, just slightly imperfect.

Punishing errors can be very bad. Though you can't dissuade someone from doing something they don't intend to do, you can dissuade them from doing anything at all. Which is to say, you can dissuade them from becoming a judge or taking on more complex cases.

Why would a judge not recuse themselves from more complex cases if they know they'll be metaphorically hanged for any mistake on their part? Why would someone choose to become a judge if it's a field where they know they'll be unduly scrutinised?

Having less judges doesn't guarantee you'll have less errors. It will certainly guarantee more workload, as if courts weren't busy enough.

Appeals happen anyways. Appealing a decision is a right of the defendant, plaintiff and/or prosecution. Appeals aren't designed to punish judges, it's a recourse available to anybody when they estimate justice wasn't served right. Even admitting your idea made judges foolproof, people would still appeal decisions they don't like, because they largely have a right to. So I wouldn't anticipate that it would lighten the caseload.

5
  • "Punishment doesn't dissuade errors, since errors are by nature unintended" — pure sophism. Punishment motivates to make more effort to be more careful, thoughtful, thorough, meticulous and accurate to minimize the likelihood of errors.
    – Greendrake
    Jul 20, 2023 at 16:11
  • "When a judge wilfully diverts the course of justice, there are consequences" — yeah, right. Like one can always tell whether an error was genuinely unintended, or only masked as such to cover corrupt motivations.
    – Greendrake
    Jul 20, 2023 at 16:15
  • 1
    If the appelate judge rules the first judge made a punishable error, how do you know that the appelate judge is right? — well, the appellate judge is deemed to be right unless/until overturned. That is sufficient.
    – Greendrake
    Jul 20, 2023 at 17:08
  • 1
    @Greendrake "Punishment motivates to make more effort to be more careful" - This sort of toxic management has a lot of perverse effects, including causing more stress leading to more mistakes. I stand by what I say in the answer, unwarranted punishment is a good way to drive people away more than anything else. Jul 21, 2023 at 7:11
  • @Greendrake "Like one can always tell whether an error was genuinely unintended" - You can't and that's sort of the point. Before punishing someone for wrongdoing, you need to investigate the facts. That's extra time and effort that appelate judges probably don't have the bandwidth for, and if you can't make a convincing enough case that a judge purposefully sabotaged a case, that judge should get the benefit of the doubt, like any defendant. Making too many errors can be ground for a formal investigation, but there can't be a quick-and-easy rule. Each case has to be judged separately. Jul 21, 2023 at 7:15

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