Law & Economics Working Papers
At first glance, it is puzzling to suggest that courts should care whether the public would be outraged by their decisions; judicial anticipation of public outrage and its effects seems incompatible with judicial independence. Nonetheless, judges might be affected by the prospect of outrage for both consequentialist and epistemic reasons. If a judicial ruling would undermine the cause it is meant to promote or impose serious social harms, judges have reason to hesitate on consequentialist grounds. The prospect of public outrage might also suggest that the Court's ruling would be incorrect on the merits; if most people disagree with the Court's decision, perhaps the Court is wrong. Those who adopt a method on consequentialist grounds are more likely to want to consider outrage than are those who adopt an interpretive method on nonconsequentialist grounds (including some originalists). The epistemic argument for attention to outrage is greatly weakened if people suffer from a systematic bias or if the public view is a product of an informational, moral, or legal cascade. There is also a strong argument for banning consideration of the effects of public outrage on rule-consequentialist grounds. Judges might be poorly suited to make the relevant inquiries, and consideration of outrage might produce undue timidity. These points have general implications for those who favor "popular constitutionalism," or judicial restraint, on democratic grounds. An understanding of the consequentialist and epistemic grounds for judicial attention to public outrage also offers lessons for the decisions of other public officials, including presidents, governors, and mayors, who might be inclined to make decisions that will produce public outrage.
Cass R. Sunstein, "If People Would Be Outraged by Their Rulings, Should Judges Care?" (John M. Olin Program in Law and Economics Working Paper No. 332, 2007).