An open access publication of the American Academy of Arts & Sciences
Fall 2008

Serving America’s best interests

Stephen G. Breyer

Stephen Breyer, a Fellow of the American Academy since 1982, has been an Associate Justice of the U.S. Supreme Court since 1994. He is the author of “Active Liberty: Interpreting Our Democratic Constitution” (2006).

A poll was conducted in 2001 that asked people whether they believed that judges decide cases impartially and according to law or whether they believe that judges do whatever they wish as soon as they put on a judicial robe.1  When that poll was initially conducted, two-thirds of the respondents believed that judges decided cases impartially and one-third thought that judges simply decided cases according to their own preferences. When that same poll was conducted in 2005, however, close to half of the respondents indicated that judges’ votes are driven by their personal predilections. This trend is alarming. The skeptical view of judging is not shared by the judges. We believe when we decide a case that we exercise not subjective preference but our judgment based on law. We try to find the correct legal answers to difficult legal questions.

A serious discrepancy between our own view of our own efforts and the view of a large segment of the public is cause for concern in a democracy. That is because the judicial system, in a sense, floats on a sea of public opinion. Do not misunderstand that statement. The Supreme Court does not reach an outcome in a particular case because doing so would be popular; nor does it shrink from issuing a decision that it suspects may prove unpopular, if that decision is what the law requires. I believe that it is impossible to be a conscientious judge with one eye on the U.S. Reports and the other eye on the latest Gallup poll. Nonetheless, the judiciary is, in at least some measure, dependent on the public’s fundamental acceptance of its legitimacy. And when a large segment of the population believes that judges are not deciding cases according to the rule of law, much is at stake. As Chief Justice John Marshall warned, “The people have made the Constitution, and they can unmake it.” And the society around us can undermine the judicial independence that is the rock upon which the judicial institution rests. .  .  .


  • 1This essay is taken from remarks given at Fair and Independent Courts: A Conference on the State of the Judiciary, convened by the Georgetown University Law Center in September 2006.
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