Public distrust in courts causes divide and inequality---confidence in courts is key to keep people unified

Raymond J. Lohier: I don’t dispute at all the caveats that Jeff mentioned, about, for example, the counter-majoritarian role of the courts, and also about polls generally. But I do worry. One reason that I think we should all worry about a loss of confidence and support in the courts, or even a reported loss in confidence and support, is that — this is almost cliché — but we really have nothing other than public confidence to protect the branch.

I do think that we should pay attention when there’s any indication of flagging confidence or support in the judiciary. What’s important in my view is that there has to be at least the perception of some connection — and a judicial appreciation that there must be a connection — between the public and the Court, between what the public expects, broadly speaking, and how the Supreme Court and courts of appeals and the district courts rule, and how we justify or explain our rulings.

Any loss in confidence in what we do, or what the Supreme Court does, makes the rule of law somewhat more vulnerable and detracts from the legitimacy of what we do. What I mean by that, at least in part, is that a lack of confidence increases the risk that actors — it could be public actors, legislatures, certainly ordinary people — are just over time going to ignore our orders and mandates. And they’re going to do so as they perceive a lack of confidence or diminution or decrease in confidence and support in courts. They’re going to do so thinking that there will be no practical consequences. And that’s always the worry. It also increases the chances that the public — not only here but also abroad, which I think is an important point — is going to start to regard our judicial decisions not as a product of impartial deliberation based on the facts and the law in each particular case, but as in favor of or against a particular party, or a particular position, and as essentially pre-ordained, based entirely on the composition of the decision-making panel.

A few years ago, I had the good fortune of meeting a chief justice of what I would describe as a troubled democracy. He spoke to a few federal judges here in New York City and described this phenomenon in a very powerful and very sobering way. What he described is a series of repeated and unrebutted attacks [on the judiciary] from different sectors within the government in that country, especially the media and government actors in that country. Over time, this caused a significant reduction in public confidence in the supreme court of that country in particular, marginalized legal principles, and also marginalized the people within the country — at many levels, but certainly at the highest level — who believed in and were trying to foster a belief in the rule of law.

That’s a problem. And as we, the federal judges, were listening to this chief justice, we were thinking about the fact that it’s not an impossible future in the United States. And part of the problem is that when you have that loss of confidence in the court system, people resort to other means to resolve those matters that are properly or historically within the realm of the judiciary.

I think that there’s a bright side. I don’t think that the poll that you mentioned, David, or the polls that I’ve seen, have picked up on any decrease in confidence in the judiciary among members of the Bar, among the attorney class. And I think that’s pretty important. That was not true, by the way, in the troubled democracy that the chief justice of that country described. And I do think that if that ever begins to happen, that is, a decrease in confidence among the members of the Bar in the pronouncements of the Supreme Court or of the lower courts, or in state court rulings, then we have a truly significant problem.