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  • Is there a legal consensus on whether judges should / should not be influenced by public opinion?
  • If so, is there some maxim, phrase, or principle that illustrates that position (e.g. "innocent until proven guilty" is a phrase for a different legal principle)?

I am rather surprisingly unable to find answers via Google - I find lots of papers that investigate whether judges are influenced by public opinion, which is tangential to the questions. This is the only relevant result I've found, but it's a only one result so it might not be representative.

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    Public opinion, generally no. Changing societal norms, maybe - and of course there may be a fine line between the two. There are differing philosophies on the latter, roughly following the lines of originalism (which says no) versus [living constitution](Living_Constitution) (which says yes). Maybe those are some of the terms you are looking for? Nov 13 '21 at 15:33
  • 1
    Are you talking about public opinion about the law, or about whether a particular defendant is guilty of the law?
    – Barmar
    Nov 13 '21 at 18:20
  • @Barmar when I wrote the question, the latter.
    – Allure
    Nov 14 '21 at 1:09
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In the US Judges are generally not supposed to take public opinion into account, nor the views of executive officials, except as those are expressed in briefs or other documents submitted during a case.

This is part of the "Independence of the Judiciary" or "Judicial Independence" Where a court has been too strongly influenced by short-term public opinion in a criminal case, this has been held to be a violation of Due Process, as was noted in Powell v. Alabama, 287 U.S. 45 (1932) although the main issue there was the right to Counsel (a lawyer). In the opinion it is said that:

It is perfectly apparent that the proceedings, from beginning to end, took place in an atmosphere of tense, hostile and excited public sentiment. (287 U. S. 51)

However guilty defendants, upon due inquiry, might prove to have been, they were, until convicted, presumed to be innocent. It was the duty of the court having their cases in charge to see that they were denied no necessary incident of a fair trial. (287 U. S. 53)

In The Federalist #78 Hamilton wrote:

... from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

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    I wish that any downvoters would leave a comment indicting what they think is wrong with this answer. In the absence of a comment, I cannot improve the answer, others cannot use the reasons to write better answers, and readers have no idea why someone objects to the answer. Such a downvote seems pointless. Nov 13 '21 at 16:53
  • But public opinion could in theory make an impartial jury impossible. Could a prejudicial jury be cause for a mistrial?
    – Neil Meyer
    Nov 13 '21 at 17:57
  • 2
    @Neil Meyer Yes it can be and has been. Judges take various measures to avoid this, including jury sequestration, change of venue to another area, and blocking published news coverage of a case. Still sometimes jury prejudice becomes evident, and it can lead to a mistrial or to a conviction being overturned. But this question is about Judges, not juries. Nov 13 '21 at 18:19
  • The legal and political theory of the federal courts and of the state and local courts is not necessarily the same, which is not to say that the points raised by the Federalist aren't valid ones.
    – ohwilleke
    Nov 16 '21 at 22:38
  • @NeilMeyer Failure to grant a change in venue based upon the unlikelihood of an impartial jury being seated can be cause for a mistrial.
    – ohwilleke
    Nov 16 '21 at 22:39
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No, and yes

Courts must decide a case by determining the facts and applying the applicable law subject to precedent.

So, no, public opinion surrounding a particular case is irrelevant.

But, yes, a precedent may be out of step with current community expectations and, assuming the court has the power to overturn it, they can. For example:

Of course the most famous reversal of precedent is the 1954 Brown v. Board of Education under the Warren Court, in which it reversed Plessy v. Ferguson and struck down segregation under the “separate but equal” doctrine.

The US of 1896 in which Plessy v. Ferguson was good law no longer existed in 1954 and the court had the power to decide that the law had changed because society had changed.

Whether you consider that to be “public opinion” or something else is a matter of semantics.

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    Courts have inherent power to overturn their own precedents. It's not that community expectations give them it. Neither they are obliged to follow community expectations.
    – Greendrake
    Nov 13 '21 at 7:21
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    @Greendrake quite true. But when community standards have changed, that may provide a reason for a court to reverse an earlier decision. Nov 13 '21 at 16:47
  • BTW Iwould say that not the most famous but the most dramatic US reversal was Barnett v West Virginia, the 2nd flag salute case, in which community standards did not change, and most members of the Court were also the same, and a a large number of Justices shifted position from Yes to No. Perhaps the most famous was Dred Scott which was reversed by the outcome of the US civil war, confirmed by the 13th and 14th Amendments. Nov 13 '21 at 16:52
  • There is a thin line between public opinions and just a societal shift in sentiment. There is no doubt that there was a large amount of public opinion on gay marriage before it was made legal but the law was changed because the general consensus was that it was unfair.
    – Neil Meyer
    Nov 13 '21 at 18:01
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Are judges supposed to take public opinion into account?

No.

The job of judges is to make decisions in cases — by looking at the facts, applying the law and not giving a shit about what the public will think.

From that perspective, public opinion is irrelevant and should not distract judges from doing their job.

(That is not to say that it does not, but that is not what the question is about).

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There are some cases where the Supreme Court has held that decisions should incorporate public opinion. For instance, one of the the elements of obscenity is that it offends local sensibilities. What constitutes "disturbing the peace" can also depend on prevailing opinions. Shouting "America is for Christians!" is more likely to be found to be disturbing the peace if it's done in a mosque rather than a Trump rally. Just what is considered "cruel and unusual punishment" depends on social norms.

2

Sometimes yes, sometimes no.

There are four main canons of judicial ethics in the U.S. which have some sub-points, which explain how judges should do their jobs:

CANON 1 A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

Rule 1.1 Compliance with the Law

Rule 1.2 Promoting Confidence in the Judiciary

Rule 1.3 Avoiding Abuse of the Prestige of Judicial Office

CANON 2 A judge shall perform the duties of judicial office impartially, competently, and diligently.

Rule 2.1 Giving Precedence to the Duties of Judicial Office

Rule 2.2 Impartiality and Fairness

Rule 2.3 Bias, Prejudice, and Harassment

Rule 2.4 External Influences on Judicial Conduct

Rule 2.5 Competence, Diligence, and Cooperation

Rule 2.6 Ensuring the Right to Be Heard

Rule 2.7 Responsibility to Decide

Rule 2.8 Decorum, Demeanor, and Communication with Jurors

Rule 2.9 Ex Parte Communications

Rule 2.10 Judicial Statements on Pending and Impending Cases

Rule 2.11 Disqualification

Rule 2.12 Supervisory Duties

Rule 2.13 Administrative Appointments

Rule 2.14 Disability and Impairment

Rule 2.15 Responding to Judicial and Lawyer Misconduct

Rule 2.16 Cooperation with Disciplinary Authorities

CANON 3 A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.

CANON 4 A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.

The duties of impartiality and independence may require a judge to ignore public opinion. But there are also circumstances in which public opinion is relevant, usually, in circumstances where a judge has significant discretion. Rules 1.1, 2.2, 2.3, and 2.4 often require a judge to ignore public opinion. Rules 1.2, 2.8, 2.9. 2.10, 2.11, and almost all of the rules under Canon 3 and Canon 4, often requires a judge to consider public opinion.

Judges aren't umpires. As a judge at a recent seminar in Kansas explained:

[A]t least for conscientious judges, legal questions have an ethical dimension. The complexities, paradoxes and uncertain boundaries of legal decisions make it impractical for judges to plainly follow the law wherever it leads, he said.

“It is a bit more complicated than that,” Stegall said. “Mature common sense people of all stripes really know this intuitively. I do find it interesting, however, how uncomfortable it often makes us to admit as much.”

He said judges could be left in a quandary when laws or court rules lacked objective, measurable standards and required members of the judiciary to fill in the blanks.

“That’s when the subjective experiences of judges at least threaten to be brought forward in the decision of the court[.]"

For example:

  • In sentencing a criminal defendant in cases where the judge has discretion in making that decision.

  • In determining an appropriate amount of non-economic damages or punitive damages or damages to reputation following a trial to the court.

  • In determining the likelihood that an alleged trademark infringement will cause confusion to the public.

  • Determining if material is obscene in light of "prevailing community standards"

  • Determining if a punishment is cruel and unusual.

  • In determining if injunctive relief harms the public interest.

  • In determining if a name change harms the public interest.

  • In evaluating the norms and customs of a community when this is an element of a legal claim, e.g. concerning what constitutes "good faith" in circumstances when it is defined broadly, and in determining what constitutes information that a person has a duty in good conscience to disclosed in a fraudulent concealment case.

  • In weighing how serious it would be for a criminal defendant to be freed prior to trial when weighing how strict conditions of pretrial release should be.

  • When evaluating which rule of law should be selected in cases of first impression that are not squarely controlled by other precedents.

  • When evaluating if a failure to recuse from a case would create an "appearance of impropriety."

  • When evaluating if a criminal defendant can receive a fair trial in a particular court venue given public opinion and pretrial publicity that may be pervasive in a potential jury pool.

So, the question cannot be answered in the abstract. One needs to know more about the context of the particular issue presented to know when it is and is not appropriate for a judge to consider public opinion in making a ruling.

The structure of the judiciary also provides some implicit guidance. Most states judges are either elected or subject to non-retention based upon a popular vote, which is a powerful constitutional message to judges that they should not be entirely divorced from the public sentiment that their decisions lead to. Even appointed judges are frequently political appointees suggesting that those systems too, although to a lesser degree, acknowledge that some recognition of public opinion is unavoidable and often appropriate.

But there is consensus that judges are not pure politicians and should consider public opinion only in circumstances when it advances their mission and duty, and not when it interferes with their independence and integrity.

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In some limited situations, yes, they are. They are supposed to take into account public opinion in politicized cases, to ensure juror safety and integrity.

A judge's goal is to ensure a fair trial, and sometimes that requires making decisions based on the fact that the public has strong prior feelings one way or the other and may improperly bias the jury. This may mean removing obviously-biased jurors or sequestering the jury.

1

The link you give quotes a judge as saying:

while the judiciary should be aware of public sentiments, there is a “vital difference between the public interest and public opinion”

Generally the idea is that, for example

  1. In an unfair dismissal claim where someone was dismissed for using "bad language" what constitutes bad language and how bad any word or phrase is would be mainly a matter of public sentiment which changes gradually over time and which a judge would legitimately take into account.

  2. If the public generally dislike some television personality because they appear ignorant, selfish and vain, the judge should not take that into account when deciding whether they are guilty of some specific crime they are accused of.

  3. In deciding whether a government minister has acted unlawfully in making some public decision a judge should not have any regard to whether that politician is generally liked or generally disliked by the public.

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Redundant. There are already ways to do that.

(and I believe your question is inclusive of methods which are not strictly via the law).

Forget the judge - pressure the parties

The vast majority of cases are actually settled consensually among the parties. The legal process proper greatly aids settlement, because it forces them to really build their case. That means a fearless and searching assessment of their case's strength and weakness, seeing their opponent's perspective (for tactical reasons) and grasping just how strong their case is not. All these "reality checks" encourage both parties to look for an "exit ramp" - a settlement. And that's a great time for public opinion to give one party another nudge: "We look like heroes to the public" becomes part of the calculus of settlement.

Even if they don't or can't settle, the parties can certainly sway the court!

We saw an excellent example of this recently, in the Britney Spears conservancy (which can't be "settled")... when Jamie Spears said "As conservator, I strongly urge the court to end the conservatorship altogether". Wow, talk about influence! I think Jamie would not be saying that if not for the force of public opinion. The public swayed Jamie; Jamie swayed the court.

File an Amicus Curiae brief

Or in English, a "Friend of the Court" brief.

This is when a member of the public is not a plaintiff nor defendant, but still has an interest in the case. It's in principle to tell the court something it does not know, pertaining to the facts or the law in the case. (you know what the court knows because the papers filed in the case are public in most cases).

How does the general public do this? People get organized. For instance, billions of people care about fairness on the Internet, but we got organized and there's an Electronic Frontier Foundation now. Almost any court case anywhere involving Net Neutrality will get an Amicus brief from the EFF. Other organizations will work with the EFF to make sure the EFF includes their interests in its brief... if the EFF falls short, or if interests collide, the other organization(s) will file their own Amicus.

The system has some "friction" to make it not super easy to file an Amicus brief - for instance the Supreme Court requires the Amicus be filed by an attorney approved to practice in front of them. But that's so the court rules get followed (e.g. the brief must be served properly on all parties and the court)... and also so you don't have 50,000 Britney super-fans presenting 50,000 incompetent Amicus briefs.

Communication with a judge other than via an Amicus or proper channels would be "ex-parté communication" which is a severe violation of court rules and jeopardizes fairness of the proceeding. That's why Amicus exists.

Judges are applicators of law, not deciders of law!

It's a very common myth that you can appeal to a judge's sense of fairness or decency. That's not what they do. They are not mediators or compromise-creators. They do not sit in "the role of Solomon" trying to decide what is fair. All they do is apply existing law to the facts of the case.

The two sides do their best to present persuasive facts and resolve any conflicts in the facts in their favor. Once facts are established, they compete to cite statute and case law that is well-aligned ("on point") to the facts. The judge takes that, plus their own legal research, and tries to write a judgment so well rooted as to be unappealable.

Really, failure for a judge is having your judgment overturned by an appeals court. So most judges go to painstaking extremes to record the logic of their decisions, prove they did not overlook anything, and "leave nothing under their decisions in which a party could find fertile ground for an appeal".

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  • Many laws are defined in part upon the concept of what a "reasonable" person would do. If most people in a given situation would do something, an honest judge should regard the action in question is reasonable, even if the judge himself would have recognized the action as needlessly dangerous.
    – supercat
    Nov 14 '21 at 19:33
  • @supercat Well, the litmus test there would be if opposing counsel also concedes that it is reasonable. If not, the judge needs to require the claiming counsel follow evidentiary procedure, and get testimony to establish that it would be a reasonable person's act. And opposing counsel would get to cross-examine. This is "their shot", their "bite at the apple" to debunk the reasonableness claim. Not giving them "their shot" would give them a shot at an appeal. Nov 14 '21 at 22:41
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Yes, when and where the law defers to "public opinion"

Lawmakers cannot foresee every possible situation, and in many places have left open norms. This is not unique to common-law systems - lawmakers in other countries have similar challenges.

A good example of such a law norm is the term "reasonable", which you may find in constructs like "reasonable precautions". In UK jurisprudence, this has been described as the norm of the "Man on the Clapham omnibus", which explicitly is a persona representing the public opinion. Other law systems have worked out similar ways to interpret such norms.

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