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95 Geo. L.J. 903 (2006-2007)
Judicial Independence: Remarks by Justice Breyer

handle is hein.journals/glj95 and id is 915 raw text is: Judicial Independence: Remarks by Justice Breyer
The Conference on Judicial Independence has been informative and interest-
ing. We have heard powerful evidence indicating that this topic is currently
important. One panelist pointed out that studies designed to measure the pub-
lic's attitudes toward the judiciary demonstrate that the perception of judges has
shifted in recent years and that things are moving in the wrong direction. A poll
was conducted five years ago 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. 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 last year, 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.
For that reason, I think judges must do more than simply undertake our own
jobs as best we can. We must also, in this day of speedy communication, try to
explain or to teach why that institution and independence are important, not
simply to the judges or to the lawyers, but to ordinary Americans whom
ultimately our institution seeks to serve. In the next several minutes, I would
like to offer a personal view of judicial independence-with that explanatory
* Associate Justice, Supreme Court of the United States. © 2007, Stephen Breyer. September 28,
2006, Georgetown University Law Center, Hart Auditorium, Washington, D.C.


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