Judge Posner: Public Opinion in Public Affairs

Judge Posner talks about the difference between judges at the Circuit level and the Supreme Court when it comes to public opinion influencing decision.
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TRANSCRIPT

Richard Posner: Oh I don’t think . . . Judges at our level, I don’t think think much about public opinion. I think the Supreme Court does because, you know, it’s interesting example a couple of years ago. There’s a Court of Appeals for the Ninth Circuit, which is California and a number of the western states decided that the phrase “under God” in the Pledge of Allegiance was unconstitutional. And that caused a certain sensation. But on the other hand it was just the Ninth Circuit. It was just the west. And anyway it was subject to appeal by the Supreme Court. Well the Supreme Court found a technical ground for reversing the decision. It didn’t deal with the issues of religious freedom that are involved. It was very technical. Now if the Supreme Court decided “under God” in the Pledge of Allegiance was unconstitutional, that would have a tremendous impact. And I . . . I think the Supreme Court justices, consciously or unconsciously, are mindful of the public opinion consequence of any decision. But at our level, our decisions would rarely have significant effect on public opinion. So the response to the public is not a . . . not a factor. But on the other hand, there’s no doubt that judges’ ideological views, and political responses, and moral feelings and so on are influenced by the temper of the . . . of the community. So some of us think what we mean by morality is durable public opinion, right? So the judges will share the morality of their community, which is ultimately a product of what people feel. So public opinion has a, you know, tremendous underground effect. The courts are all more conservative, for example, than they were in the ‘60s. So there’s been an ideological drift in the country. And equivalently, there’s been a change in public opinion, and that’s affected who has been appointed as a judge; but also effected how judges react.

Recorded on: 11/21/07