Persuading without interfering

Aug 11, 2026 Features / Columnists, Peeping Tom

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(Kaieteur News) – There is an important distinction in the way judges deliberate that appears to have become blurred in the present controversy now engulfing the Caribbean Court of Justice (CCJ). That distinction is between judicial persuasion and judicial interference.

The history of the United States Supreme Court provides a useful illustration of this distinction. In 1954, the court delivered one of the most consequential judgments in American constitutional history in Brown v. Board of Education

It unanimously declared that racial segregation in public schools was unconstitutional. The decision overturned the constitutional foundation of the “separate but equal” doctrine, and in so doing helped change the course of American history.

But the unanimity that emerged on 17^th May, 1954, did not simply happen. The court had initially been divided. When the case was being deliberated, there were significant differences among the Justices about the precise course the court should take. It was Chief Justice Earl Warren, newly appointed to the court, who recognised the extraordinary importance of producing a unanimous judgment. He worked privately with his colleagues, discussed their concerns and sought to persuade those who remained hesitant to join a single opinion.

Eventually, he succeeded. The court spoke with one voice: 9–0.

The lesson from that episode is not merely about racial segregation or American constitutional history. It is about how collegiate courts actually function.

Judges are human beings. They possess strong intellects, firmly held legal philosophies, different experiences and, inevitably, different views about the meaning and application of the law.

A judicial panel is therefore not a collection of automatons who independently produce opinions and happen, by coincidence, to reach the same conclusion. It is a deliberative body.

And deliberation necessarily involves argument, persuasion, disagreement, negotiation and, sometimes, a vigorous attempt by one judge to persuade the others that his or her interpretation of the law is the correct one.

Strong personalities are hardly unusual on appellate courts. Indeed, some of the most influential judges in legal history have been formidable personalities who exercised considerable influence over their colleagues. A chief justice or president of a court, by virtue of experience, intellect, authority or sheer force of personality, may naturally become a particularly influential voice in the deliberations. There is nothing inherently improper about that.

A judge who strongly advances a legal position, challenges the reasoning of colleagues, points out weaknesses in their arguments and seeks to bring them around to his or her interpretation is participating in the judicial process. That is not, by itself, dictatorial behaviour. It is not necessarily domineering. And it should certainly not automatically be characterised as judicial interference.

Indeed, if judges were forbidden from trying to persuade one another, the very concept of a collegiate court would become meaningless. The objective should be rigorous and vigorous debate.

The ideal outcome, of course, is a meeting of minds. There is considerable value in a court speaking unanimously where unanimity can legitimately be achieved. A unanimous judgment carries institutional weight and can provide greater clarity and certainty in the development of the law.

But unanimity is not compulsory. If, after full and frank deliberation, a judge remains unconvinced, that judge is perfectly entitled to disagree. He or she may write a separate judgment, a concurring judgment or a dissenting judgment. Indeed, the history of common-law jurisprudence is filled with dissents that eventually became the law. That freedom is fundamental to judicial independence.

The important question, therefore, is not whether one judge is forceful, vocal or persuasive. The important question is whether the other judges remain free to exercise their own independent judgment.

This distinction is particularly relevant to the controversy now surrounding the CCJ. It is unfortunate that developments within the court should be interpreted by some as necessarily constituting “judicial interference” – or as one local politician bizarrely said, as “political interference” – simply because a particular judge may have expressed strong views or sought to persuade colleagues about the proper legal approach. That is not, without more evidence, judicial interference.

The more serious concern arises when there is allegation of interference with the composition or integrity of the judicial panel itself—for example, the improper manipulation or “tampering” with which judges are assigned to hear a particular matter, or the removal or substitution of judges for reasons designed to influence the outcome.

That is fundamentally different from a judge saying, in effect: “I have considered this matter and I believe this is the correct interpretation of the law, and I intend to persuade my colleagues to accept it.”

The former potentially compromises the integrity of the judicial process. The latter is an ordinary feature of judicial deliberation.

There must, of course, be boundaries. Judges must never coerce their colleagues, threaten them, improperly influence them or compromise their independence. But we should be careful not to confuse strong advocacy within a judicial conference with interference in the judicial process itself.

Chief Justice Earl Warren’s experience in Brown is instructive. He wanted his colleagues to come around to his position because he believed unanimity was important given the public importance of the case.  He engaged them. He persuaded them. He did not deprive them of their right to disagree.

And that is precisely how collegiate judging is supposed to work. A strong chief justice should be capable of leading. A strong judge should be capable of persuading. Other judges should be capable of resisting persuasion when they believe their colleagues are wrong. And, ultimately, each judge must remain free to write what he or she believes the law requires.

The strength of a judicial panel is not measured by the absence of disagreement. It is measured by the freedom within the panel to disagree—and by the integrity of the process through which judges attempt to persuade one another.

(The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper)

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• CCJ, interfering, Peeping Tom, Persuading

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