The 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 duty 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 judiciary’s legitimacy actually hinges on both the general acceptability of the results it produces and the relative consistency of the methods by which those results are reached.
Traditionally, scholarly 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 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 Amendment’s prohibition on “cruel and unusual punishment” . . . .