Impartial Decisionmaker

When a governmental body adjudicates the rights and interests of individuals, it is often said that the decisionmaker—the person who finds the facts and applies the law—should be impartial. This means that he or she should be insulated from improper considerations, which may include personal financial interests, fealty to the executive branch, or sympathy for one class of litigants (for example, the ones in a particular locality or party) over another. Some commentators consider the impartial decisionmaker to be the sine qua non of the rule of law and due process; others have argued that impartiality has drawbacks: it necessitates a system of adversary justice that may be slow, expensive, and under many circumstances infeasible.

The ideal of impartiality has come closest to realization in the courts, though not in the smoothest way. English common law traditionally invalidated a decision in which the judge had a personal financial stake, following Coke’s maxim in Bonham’s Case that a person cannot be a judge in his own cause. At the same time, however, English judges collected fees from litigants, which arguably gave them an incentive to attract plaintiffs to their courts. Furthermore, they were at the mercy of the Crown, which could remove them at will, until Parliament granted them life tenure in 1701. Even after that, the Crown’s control over appointments and judicial pensions made for a government- minded judiciary. In the North American colonies, this arrangement was even more pronounced: judges depended significantly on fees, and they served at the pleasure of the crown and its agents; colonists viewed a judge as just another political official.

Shortly after the American Revolution, however, the new states began allowing judges to sit for life. (They also started abolishing fees, at least in the more important courts; in this respect, they were ahead of England, which did not do so until 1826.) The U.S. Constitution of 1787 guaranteed federal judges irreducible salary (not fees) and life tenure. In The Federalist, Alexander Hamilton explained that such tenure was essential to impartiality, which was, in turn, essential to the federal courts’ mission to adjudicate interstate disputes in a vast and diverse country.

Though federal judges remained insulated as Hamilton wished, state governments, swept up in the Jacksonian movement to expand democracy, provided for popular election of many judicial offices ca. 1830–1860. Advocates of this reform insisted that the electorate was sufficiently wise to choose impartial judges, but many judgeships became associated with party machines. While various restrictions later lessened partisan influence, very few states today have fully life-tenured judiciaries.

Meanwhile, the fee systems that had been abolished in the federal and upper state judiciaries continued to flourish in minor criminal courts and small-claims courts well into the twentieth century. In many states in the 1920s, judges in minor criminal courts (enforcing Prohibition) could collect a fee from the defendant if they convicted, but got nothing if they acquitted. Until that time, the U.S. Supreme Court had dealt little with judicial impartiality as a constitutional matter (likely because the Constitution’s institutional safeguards prevented the issue from arising among federal judges).

However, now that the Court had grown comfortable applying federal due process to the states through the Fourteenth Amendment, it struck down the criminal- court fee systems in Tumey v. Ohio, 273 U.S. 510 (1927). The Court reached the same result in Ward v. Monroeville, 409 U.S. 57 (1972), in which fines were a major source of revenue to a locality of which the judge was also the mayor. Federal due process developed more slowly in the civil context than it had in the criminal one: the dependence of small-claims judges on fees from plaintiffs, though abolished in many cities during the Progressive Era (for example, Chicago in 1905), continued in Mississippi until the U.S. Court of Appeals struck it down in Brown v. Vance, 637 U.S. 272 (5th Cir. 1981).

Of course, courts do not handle all (or even most) adjudications of individual rights and interests. Given limited resources, it is often necessary for executive officers to decide facts and law without resort to a court. The potential for bias in favor of the state is, by definition, ever present. For the nineteenth century, we do not know a great deal about how the law treated this kind of executive adjudication. In part, this is because courts often chose to stay out of it. They viewed it as their job to protect ‘‘rights,’’ not ‘‘privileges’’ such as public benefits and government jobs. Also, claims by the state against citizens were ‘‘public rights’’ traditionally beyond the judicial sphere, while claims by citizens against the state were originally a legislative matter. Also, at least up to the 1870s, judges generally respected the prerogatives of localities, which accounted for much of the regulation during that era (for example, fire safety, public health, and town marketplaces).

Even when judges did get involved, the great variety of executive action meant that their inquiries had to be context specific. Ruling that a county commissioner could sit on a board deciding the location of a road that might pass through his town, Chief Justice Lemuel Shaw of Massachusetts explained in Inhabitants of Wilbraham v. Hampden County Commissioners, 11 Pick. 322 (Mass. 1831), that the principle of impartiality had to be applied in light of expediency and the wishes of the legislature.

As the nineteenth century turned into the twentieth, executive adjudication grew and changed as the nation industrialized and as new political majorities demanded that the government alter economic outcomes in more systematic ways than it ever had before. By the New Deal of the 1930s, agencies were making decisions on numerous subjects formerly dominated by private law. The concern that these agencies fused prosecutor and judge roles was primarily resolved in Congress rather than in court.

Passed in 1946, the Administrative Procedure Act (APA) created a new corps of ‘‘hearing examiners,’’ later renamed administrative law judges (ALJs). The statute provided that for all programs designated by Congress (which ultimately included much of federal regulation, such as securities and labor), each adjudication would occur before an ALJ. Though employed by their respective agencies, the ALJs, to this day, have no responsibilities besides adjudication; never communicate with investigative or prosecutorial personnel ex parte; and cannot be fired unless the agency convinces an outside board that there is good cause to do so.

One key exception to the ALJ scheme is that the agency’s top political appointees can take over any adjudication they wish, deciding facts and law themselves. Though such action is not always practical for the general run of cases, it ensures the political appointees’ policymaking role. Due process requires only that political appointees not prejudge the specific facts of the case. In FTC v. Cement Institute, 333 U.S. 683 (1948), the federal trade commissioners ordered certain businesses to stop using a certain pricing system. Prior to the case, the commissioners had publicly declared that the type of pricing system at issue was unlawful, but they had not made specific statements about the acts of the businesses involved in the case. The Supreme Court found no improper bias. By contrast, in Cinderella Career and Finishing Schools v. FTC, 425 F.2d 583 (D.C. Cir. 1970), the U.S. Court of Appeals found that the agency’s chairman acted improperly when he declared publicly, while a case was pending, that conduct highly specific to the parties was unlawful.

There is also a large residual category of adjudications over which neither a political appointee nor an ALJ presides. In fact, this residual category covers the majority of federal adjudications (the most numerous being immigration hearings). Such matters are decided by officers who lack ALJ protections. In this context, often the sole safeguard for impartiality is constitutional due process, the demands of which are less than those of the APA. For example, in Marcello v. Bonds, 349 U.S. 302 (1955), the Supreme Court upheld a deportation even though, as the dissent put it, ‘‘the hearing officer adjudicated the very case ... which the hearing officer’s superiors initiated and prosecuted.’’

Granted, due process gives protection in some instances. The Supreme Court ruled in Morissey v. Brewer, 408 U.S. 471 (1972), that parole revocation must be decided by an official without direct prior involvement in the parolee’s case (which bars the arresting officer). But the fusion of the adjudicator with the investigator was upheld for prison discipline in Wolff v. McDonnell, 418 U.S. 539 (1974) and for medical licensing boards in Withrow v. Larkin, 421 U.S. 35 (1975). Rejecting the argument that the adjudicator should always be separate from the investigator, Withrow declared that the ‘‘incredible variety of administrative mechanisms in this country will not yield to any single organizing principle.’’

Ward’s prohibition on indirect financial interests was extended to the administrative process in Gibson v. Berryhill, 411 U.S. 564 (1973), in which the Supreme Court found that it violated due process for a board composed of independent optometrists to find that their corporate competitors were engaged in unlawful practice. However, the Court upheld an indirect linkage between an agency’s decisions and its income in Marshall v. Jerrico, 446 U.S. 238 (1980).

After the attacks of September 11, 2001, the executive branch asserted the power to detain indefinitely, as ‘‘enemy combatants,’’ persons it believed to be members of Al Qaeda and associated forces. In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), a U.S. citizen detained in this way argued that the facts did not show that he was an enemy combatant. The Supreme Court held that due process entitled him to ‘‘a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.’’