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20 Suffolk U. L. Rev. 751 (1986)
Constitutional Law and Public Opinion

handle is hein.journals/sufflr20 and id is 781 raw text is: SUFFOLK UNIVERSITY
LAW REVIEW
Volume XX                  Winter 1986                  Number 4
CONSTITUTIONAL LAW AND PUBLIC OPINION
William H. Rehnquist*
A few weeks ago when I was meeting with a group of people
visiting the Supreme Court one of them asked me, Do judges respond
to public opinion? I am always glad afterwards that these sessions
are not taped or recorded, because I do not think my off-the-cuff
answers to questions like this are very profound or even always
accurate. I don't remember what I said to the gentleman who asked
this question, but I have since given some thought to the matter
and I think it is worth some serious discussion.
Surely we can begin by putting to one side the sort of public
opinion to which no judges ought to respond. A judge is conducting
a preliminary hearing to determine whether there is probable cause
to hold for trial one accused of a particularly brutal and heinous
crime. Newspapers and other barometers of public opinion make
it perfectly clear that someone is obviously guilty of this crime and
ought to be tried for it, and that this particular accused is the best
suspect in view at the moment. Should a judge be influenced by
this sort of public opinion? Obviously not. Since Chief Justice Mar-
shall, sitting as a circuit judge in Richmond one hundred and eighty
years ago, refused to hold Aaron Burr answerable to charges that
Marshall did not believe showed probable cause, judges of all makes
and models have felt compelled to hold the balance true in this
situation.' They are to act on the evidence placed before them, and
to evaluate it according to established legal standards. If this process
results in setting the accused free, so be it.
* Chief Justice, United States Supreme Court. This article is based on the Eighteenth
Donahue Lecture delivered at Suffolk University Law School on April 10, 1986.
1. See United States v. Burr, 25 F. Cas. 1, 27, 202-07 (C.C.D. Ky. 1807) (Nos. 14,692a,
14,692c, 14,694a) (discussing elements necessary for guilty verdict).

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