Professor Cass Sunstein, Chicago University Law School, questions the legitimacy and limits of judicial independence in the face of public opinion.
It is clear that judicial rulings can, and sometimes do, provoke public outrage. A significant body of literature in political science seeks to demonstrate the extent to which courts sometimes work to reduce the likelihood and intensity of such outrage. The normative question of whether judges should attend to outrage has received only episodic attention. Conventional views of this question maintain that it is wrong for judges to be affected by the likely reception of their rulings, since a key function of an independent judiciary is to check and sometimes override intensely held populist judgements.
Questioning such a view, Professor Sunstein suggested two reasons why public outrage might matter. The first reason is consequentialist, claiming that judges should take potentially adverse effects of a ruling into account. The second reason is epistemic, holding that intense public convictions may provide relevant information about the correctness of judicial conclusions. An understanding of the significance of public outrage in judicial reasoning informs thinking on the relation between democracy and judicial review, and depends crucially on empirical questions concerning the real-world capacities of various institutions.