“You stay focused on what you’re supposed to do. All that other stuff is just noise.”
— Justice Clarence Thomas
What do people think about judges? And what do judges think about them? Overall, these questions may not seem significant. We 21st century human beings are overwhelmed by the onslaught of the information age. We find ourselves navigating a perplexing spectrum between instant info gratification and numbing paralysis because there is just so much coming at us all the time. So whatever the public thinks about the courts, it may not matter if nobody, including judges, can actually notice and think about it for any meaningful length of time.
Public opinion polls have often suggested a general uneasiness about the outside influences affecting judges. In 2001, for example, polls showed people largely agreed that “politics” had more influence on the United States Supreme Court than it ought to. Pew reported in 2015 that 70 percent of those polled felt a justice’s personal political views affected his or her rulings (and that 100 percent of polled law professors agreed). As recently as 2018, a Rasmussen Reports poll indicates that while only 40 percent of the people trust the U.S. Supreme Court, it still is higher than Congress or the president. But Gallup polls found that same year that very few Americans knew the names of Supreme Court justices or understood how they basically work within the three branches of government.
The world of academia has long studied whether public opinion affects courts, or whether courts can affect the public. Over time, there are some studies that even purportedly show there can be a measureable time relationship between the public mood and the resulting effect on court decisions, perhaps even specifically five years. On the other hand, there is a lot of work and data regarding the lack of any such showing, including whether even the courts have any effect on society or public opinion. One of the most well-known, and most highly controversial, is Professor Gerald Rosenberg’s 1991 book “The Hollow Hope.” It claims to successfully disprove the belief that the U.S. Supreme Court has any effect on social change by looking at five famous cases, including Brown v. Board of Education and Roe v. Wade. A seemingly middle ground is argued by Matthew E. K. Hall, professor at the University of Notre Dame, in his book, “The Nature of Supreme Court Power.” He sees a “semi-constrained” U.S. Supreme Court that worries whether some specific decisions will be implemented and is accordingly affected by public pressure when “non-implementation” is most likely. He recently explained that his study showed that “anytime a decision is popular, implementation is successful.” Therefore, Supreme Court decisions are sometimes crafted to be more acceptable when that is most crucial. (On the other hand, he said, federal courts of appeals seem to have no problem if they are “against public opinion.”)
So what is a state court judge to do? Although required to be impartial and unbiased, we do not live in a vacuum. Like these studies about the U.S. Supreme Court show, we also live on the front lines of external pressure. After a ruling was once negatively editorialized in local media, one of my colleagues told me, “I’m glad you didn’t do the ‘2-step.’” He meant changing my mind (from one way to a second), so it would not be unpopular, but would not be right. But Hall makes a good point about making sure a ruling will be accepted. Balancing the law with public acceptance does have its practical advantages.
The more intriguing question is: What should the public know about what the state courts think about them?
They are different from us — yet the same — and we worry the public does not appreciate that difference. We have to be dispassionate and human at the same time. Sometimes that leads to confusion and misunderstanding.
Politics among the public is a different thing than politics among judges. In judging cases, courts can take note and consider the political aspects of evidence, issues,and parties. But the political preference of a judge does not determine the merits like it does in the minds of the public.
Judges depend on public confidence. We don’t need to be popular, but we need to know the public believes in the courts.
As every day brings the next case, the next issue, the next barrage of community pressure, we judges are always reassured by people: lawyers who do their best, staff who solve problems and hopefully parties who can appreciate a fair system that does not always go their way. The greatest public pressure of all would be one in which people stop believing in the courts. That is one pressure we will never have to face, because we who work in the system will never stop believing, whether we are popular or not.•
Judge David J. Dreyer has served on the Marion Superior Court for more than 21 years and is a former member of the Board of the Indiana Judges Association. Opinions expressed are those of the author.