Sunstein, Cass R.
October 2007
Stanford Law Review;Oct2007, Vol. 60 Issue 1, p155
Academic Journal
At first glance, 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 that it is meant to promote or impose serious social harms, judges might 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 of constitutional interpretation 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 judicial attention to public outrage is greatly weakened if people suffer from a systematic bias or if public outrage is a product of an informational, moral, or legal cascade. There is also an 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. But in rare (but important) cases, judges legitimately attend to outrage and its effects as a way of ensuring against futile or perverse outcomes. An understanding of the consequentialist and epistemic grounds for judicial attention to public outrage also bears on the appropriate understanding of political representation; it 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.


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