Crowd Control:The Majoritarian Court and the Reflection of Public Opinion in Doctrine1.IntroductionThe judicial branch of the federal government has historically had an uneasy relationship with public opinion. Like the executive and legislative branches,the judiciary depends on public support for its legitimacy. But unlike the political branches, the judiciary is not electorally accountable to those whose support it requires. To the contrary, one of its defining attributes is the dury to thwart political expressions of popular will that run afoul of the Constitution Nevertheless, it has been noted that ”the arguments of appellate judges in the Common Law world necessarily rest, according to some legal scholars, on community consensus about extralegal values.” In other words, the often counter-majoritarian judiciary must produce results acceptable to the general public over the long term in order to maintain its legitimacy. Professor Chemerinsky has posited that the judiciarys legitimacy actually hinges on both the general acceptability of the result it produces and the relative consisitency of the methods by which those results are reached.Traditionally, scholary and judicial commentary on the influence of public opinion on the federal judiciary has followed two courses. Some commentators and jurists argue that judicial independence requires that public opinion have no influence on judicial decision-making. Another group of scholars advocates an indirectly influential role to “objective” measures of scholars advocates an indirectly influential role for public opinion in limited contexts. These scholars believe judges should refer to “objective” measures of public opinion as guidelines when deciding questions of statutory interpretation and delineating the Eighth Amendments prohibition on “cruel and unsual punishment.”Recent developments in empirical research suggest that these positions take too limited a view of public opinion as an influence on judicial decision-making. The research suggests that the “judicial isolation” model conflicts with reality-the influence of public opinion may be inevitable. This Article will examine this evidence, which suggests that many judges are influenced-at least marginally by public opinion. Because the judiciary is the one branch of the federal government committed to a transparent decision-making process in various contexts. The mechanics of this apparent influence have significant consequences for how we conceive of the relationship between public opinion and judicial outcome and whether this apparent influence is in fact a threat to judicial independence.One might expert public opinion to exert its influence though the juficiarys interaction with the political branches into which democracy channel it, and it is to these interaction that this Article turns first in its inquiry into the mechanics of public opinions apparent influence on judicial outcomes. But political controls, such as Congressional control over jurisdiction and budget, are blunt instruments. The political costs of threatening as a means to influence the judiciary on a case-by-case basis.Presidential refusal to execute the judiciarys rulings is a more precise-but rarely invoked-constraint. Formal political constraints ultimately fail to explain public opinions influence on individual cases.The Article next turns to more informal influences on judicial decisions. These constraints include the role of stare decisis and the appellate process, as well as concerns about the jurists indiwidual reputation and that of the judiciary as a whole. Public opinion may reinforce several of these constraints, but seems to have most of its influence where these constrains leave jurists with discretion. Public opinion thus appears to operate in much the same sphere as the judges own political ideology, which, according to the “attitudinal” model of judicial decision-making, the judge may promote within the scope of the discretion afforded by precedent.Because consideration of both formal and informal constraints and attitudinal models of decision-making yields unsatisfying answers, the Article turns from influences extemal to the judicial decision-making framework and exanmines the framework itself. In an attempt to understand the apparent influence of public opinion, this Article imagines what a principled incorporation of public opinion into the various analyses might look like if public opinion were an explicit, rather than mysterious, influence on judicial outcomes, beginning with an examination of one case where the Court did consider public opinion polls as part of its legal analysis. This thought experiment ultimately suggests another explanation for the correlation of public opinion and judicial output.The Supreme Courts citation of opinion polls in Atkins v. Virginia suggests that polls may be useful evidence of public opinion if public opinion had a legitimate place in legal analysis. The use of opinion polls as evidence of public opinion would expand the universe of issues about which there may be judicially knowable public opinion, and represent a significant step towards the potential principled incorporation of public opinion into judicial decision-making. Although the courts use of opinion polls was unfortunate because the polls were not subject to examination and criticism by expert witnesses in the trail court, polls are potentially important and powerful evidence of public opinion. The criticisms leveled at the courts use of opinion polls in Atkins, moreover, suggests that public opinion can be measured accurately enough to be of use to judges.The traditional “srectrum of deference” suggests it is possible to make a reasoned evaluation of the appropriateness of public opinion as an influence in various judicial contexts. The spectrum is based on a realistic evaluation of the relative institutional advantages of the judiciary and Congress, and affords Congress varying degress of deference depending on the various functions implicated by the decision-making cotext. Although the consideration are not identical when the question is the consideration of public opinion rather than deference to the will of a political branch, an examination of the values underlying our government and the judiciarys insititutional abilities will illuminate when and how the judiciary may reflect public opinion.For example,Professor Eskridge has argued that public values ought to and do influence the process of stantory interpretation.No Atkins suggests that public opinion,which may amount to something less than Eskridges public values, might influence the prosses of statutory interpretation depending on the strength of the prefererce and the strength of other traditional indicators of statutory meaning.Federal common law is anther poterntial context for the consideration of public opinion. Although the common law does not always directly reflect public preferreces, democratic principles suggest that public opinion could be relevant to determining common law rules. The common law context illuminates several instances where public opinion should not be considered-in most cases where the rule may affect the publics tax burden, or where public opinion is adverse to a minority or individual who does not enjoy constitutional protecion related to the rule of law to be decided.Public opinion could also theoretically play a role in constitutional adjudication. Perhaps ironically, determining where legislation is within Congresss power under the Interstate Commerce Clausae in which the Court grants Congress substantial deference-proves to be an inappropriate doctrine for incorporating public opinion. The reason is two fold. First, there is no reason to believe that the public has any inherent advantage over the judiciary in determining whether an activity substantiallu affects interstate commerce. Second, the Courts Commerce Clause jurisprudence serves merely to channel public opinion to the consitutionally appropriate decision-maker-a determination for which the popularity of the legislation in question seems irrelevant. Nevertheless,public opinion fits surprisingly well into other consitutional doctrines.The vindication of national opinion over a majority in a smaller constituency may justify comsideration of public opinion in the Courts Fourteenth Amendment jurisprudence. Doctrinal developments in Lawrence v. Texas suggest that public opinion could become a legitimate and explict consideration in the substantive due process arena. In the course of striking down Texass law against homosexual sodomy only seventeen years after upholding the states ability to prohibit such conduct in Bowers v. Hardwick,the Lawrence Court engaged in analysis that bore striking similarities to ite Eighth Amendment analysis in Ackins. The Lawrence Court thus pointed to a doctinal place for public opinion in its substantive due process jurisprudence. Because similar developments have not occurred in the Courts equal protection jurisprudence, this Article reserves judgment regarding the fit of public opinion into equal protection doctrine.The examination of how public opinion might fit into various judicial doctrines suggests where and how public opinion may influence outcomes. In most instances, the correlation of public opinion and judicial outcomes is the result of the process by which judges routinely make decisions rather than an influence external to the decision-making process.This influence therefore need not be viewed as a threat to judicial independence.Current doctrine is, across the board, well designed to reflect public opinion.This Article proceeds as follows:Part 2 identifies several instances where there is agreement that public opinion must not play a role in judicial decision-making, and examines the competing judical traditions regarding the role of public opinion in consitutional sdjudication.Part 3 the surveys evidence that public opinion influences judicial decision-making, and concldes that public opinion may have a marginal effect. It next attempts to explain how this influence operates, but finds both political and informal intra-judicial constraints inadequate to account for public opinions influence on the judiciary. Finally, it examines the use of opinion polls in Arkins to determine the meaning of “cruel and unusual punishment.”Part 4 examines judicial decisional tools themselves to explain the apparent effect of public opinion on judicial decision-making. It first outlines the traditional spectrum of deference,which serves as an example for the context-specific analysis of whether public opinion could be apporiate as an example for the context-specific analysis of whether public opinion could be appropriate as a doctrinal consideration in various contexts. It next examines whether public opinion could be a legitimate consideration in various contexts, including statutory interpretation, common law-making, and several consititutional contexts. The Article concludes by examining the tendency of various doctrines to reflect public opinion, and the effect of recent jurisprudence on the public opinion-mirroring ablity of those doctrines.2.The Debate over Public Opinion in Judicial Decision-making2.1 Public Opinion as Anathema to Judicial IndependenceThere is widespread agreement that in certain cases, public opinion should not play any role in a judges decision. For example, determinations of whether probable cause exists to try a defendant is guilty.Nor should public animus influence individual sentencing decisions. A recent example of these dangears is illuminating.In 1995,Federal District Judge Baer of the Southern District of New York presided over a high profile drug prosecution. After a hearing where Judge Baer found the testimony of defence witnesses credible and the testimory of police officers ”incredible.” he encluded large quantities of drugs and a confession,rulling that they were obtained in violution of the defenfants Fourth and Fifth Amendment rights.The public and political responses were immediate. The New York Times ran several editorials condemning the ruling. Members of Congress spoke publicly about impeachment, and some even asked President Clinton to add his voice to the criticism. In the meantime ,Judge Baer granted a rehearing on the supperession motion. President Clinton declined to comment on the case pending the results of the rehearing.According to the New York Times, a group of Circuit Court judges, and several commentators, the message to Judge Baer was clear:reverse yourself, or risk losing losing your job, despite the convention against impeaching federal judges because of their decisions.After rehearing the motion, Judge Baer reversed his original decision and admitted the evidence,citing newly-introduced police reports as additional evidence that compelled him to change his mind. But critics claim that this additional evidence could not have been a sufficient ground for reversal, and may have even hurt the prosecutions case by creating additional inconsistencies with the officers testimony. Judge Baer was in a no-win situation.There was negative publicity about his original decision to exclude the evidence, and there would be a negative public reaction to a change of position based on his decision to include the evidence-both of which could undermine public confidence in the impartial nature of the judiciary.The lat Chief Justice Rehnquist wrote about the effects of public opinion on the judicial decision-making process, concluding that “no judge can consciously say in so many words.”I gave you my best judgment when I decided that the Constritation meant thus and so, but since the public overwhelmingly disagrees with my interpretation of the Constitution meat thus and so, but since the public overwhelmingly disagrees with my interpretation of the Consitution. I will therefore change my mind. “On its face, this statement appears to reject public opinion as a considerational adjudication, a position consistent with much of Pehnquists jurisprudence.In these contexts, capitulation to contrary public opinion would signal the end of judicial independence. But a careful consideration of public opinion in certain cases does not necessarily indicate an erosion of judicial independece. Commerntators and jurists have long acknowledged the influence of public opinion without concluding that the judiciary has abdicated its responsibility of independent judgment.2.2 Competing Judicial Views on the Propriety on Considering Public OpinionCommentators and jurisis have long recognized the effect of public opinion on the judiciary incircumstances where it is not a threat ti judicial indepence. The Chief Justice Rehnquist, drawing on his experience as a law clerk to Justicce Jacksonn, concluded that public opinion had a significant influence on the Courts disposition in the “Steel Seizure”case. In 1952, President Truman, fearing that a reduction in steel production would hinder the Korean War effort, ordered federal officials to seize and operate several steel production facilities during a strike. Steel companies brought suit and obtained an injunction from the district cout enjoining the court of appeals and appealed directly to the Supreme Court, which granted ceriorari and heaard arguments nine days later. The Court rejected the governments argument that the size was jusitified by certain powers given to the Predident under Article 2 of the Consitutution.The timing of the governments “inherent power”argument was not good, as support for both the Korean War and President Trnman was at its nadir. Chief Justice Rehnquist suggested that the tides of public opinion,accelerated and intensified by the rapid movement of the case through the federal judicial system, influenced the Courts decision. Ackowledging public opinions influence and incorporating it into doctrine are separate propositions, however,Chief Justice Rehnquist repeatedly dissented from opinions taking public opinion into account, stating that public opinion was conditutionally irrelevant.Jusice Scalia agreed with Rchnquists theory ,commcnting on “how upsetting it is, that so many of our citizensthink that we Juditices should properly take into account their views, as though we were engaged not in ascertaining an objective law but in determining some kind of social consensus.Chief Justice Rehnquist also drew considerable support for his position from a longstanding belief among the public that judges do not:and must not-consider public opinion in making decisions. Moreover, many jurists share this view of the judiciary and of their own work. Justice Douglas described judges as strong amid the winds of political change.Chief Justice Burger wrote that “l(fā)egislatures, not courts, are consitituted to respond to the will and consequently the moral values of the people.” Justice Powell agreed, nothing that “the asscssment of popular opinion is essentially a legislative, not a judicial, function.” Justice Frankfurter also wrote that courts are unlike representtative bodies because they “are not designed to be a good reflex of a democraticratic society.”Support for public opinion as a factor in judicial decesion-making among U.S. Court of Appeals judges is mixed. Of thhirth-five judges surveyed in 1981, only one responded that public opinion was “a very important” factor, while eight said that it was “moderately important” and twenty-two said that it was “not important”. Judge Tacha of the Tenth Circuit declared that public opinion should have no influence whatsoever in articulating ideal judicial procedure.Justice Story wrote that ”it is not for judges to listen to-popular appeal.” Chief Justice Taney also addressed the role of public opinion in Dred Scot v. Santord, concluding that current public opinion was irrelevant to constitutional interpretation. Strictly denying the influence of public opinion is problematic in several respects, however. First, it does not appear to reflect reality. Evidence discussed below suggests that public opinion influences judicial decision-making, even if only at an unconscious level. Second, in some circumstances, public opinion could be a legitumate consideration for a policy-making court.There is also a tradition of recognizing public opinion in certain constitutional contexts. In Planned Parenthood of Southeastern Pennselvania v. Casey, Justice Souter cirted divided public opinion as a reason to uphold the central holding in Roe v. Wade. According to Justice Somter, the Court should refrain from reversing its watershed cases until substantial public opinion for the decision becomes unfavorable.Justice Souters incorporation of public opinion into constutitutional doctrine is also firmly grounded in judicial tradition. In 1812, the Court held in United States v. Hudson that the federal courts lacked the power to make criminal common law. In the decision, Justice Johnson stated that although this question is brought up now for the first time to be decided by this Court, we consider it as having been long since settled in public opinion. In no other case for many years has this jurisdicting been asserted; and the general acquiescence of legal men shews the prevalence of opinion in favor of the negative of the proposition.中文翻譯對群眾的控制：多數(shù)主義法院的反映輿論的原則作者：本杰明-J-羅斯切 一、序言聯(lián)邦國家機(jī)關(guān)的司法部門有史以來就與社會輿論有著令人不安的關(guān)系。如同行政和立法部門，司法部門也有賴于從大眾的支持中獲得合法地位。但不同于政治部門的是司法部門并非通過被選舉的方式來對支持他們的人負(fù)責(zé)。相反，它的固有職責(zé)之一就是阻止那些違憲的群眾性政治表達(dá)。然而，根據(jù)一些法學(xué)學(xué)者的說法，有人指出普通法系的上訴法院法官的觀點(diǎn)必須有必要建立在社會最法外價值的共識上。換句話說，那些常常反對多數(shù)主義的法官也必須做出社會大眾在長期內(nèi)能接受的判決以維持其合法地位。凱姆林斯基教授提出假說：“司法的合理性取決于其判決的社會接受度和得出這個判決的程序合法性?！眰鹘y(tǒng)上認(rèn)為，學(xué)者和法官在輿論對聯(lián)邦司法部門的影響上的分析主要是走兩個路徑：一些評論家和法學(xué)家認(rèn)為司法獨(dú)立要求輿論對司法判決的作出不應(yīng)當(dāng)產(chǎn)生任何影響，另一群學(xué)者則提倡語錄在例外情形下可以對司法判決的作出產(chǎn)生間接的影響。這些學(xué)者認(rèn)為法官應(yīng)該在某些情況下尋求公眾輿論作為“客觀”的指引，比如在作出法律解釋時，在界定什么是第八