Beyond Caperton: 'Public Confidence' in Courts and Close Relationships between Judges and Jurors

Abstract

Debate about the courts frequently focuses on fostering 'public confidence' in the legal system. In the Supreme Court’s recent decision in Caperton v. A.T. Massey Coal Co., both the majority and the dissent invoked 'public confidence' arguments in support of their competing positions. Though courts invoke such arguments frequently, they do not explain what target audience they mean by 'the public' and they do not explain how judicial decisions will foster confidence. In fact, such concepts are problematic when examined closely: the general public typically will not receive the messages courts are trying to send, because most people do not read or know about specific judicial opinions. Even for those highly salient cases in which the courts’ intended messages will be received, such messages often may not broadly enhance public confidence because the general public is often divided on the controversial issues courts handle. This article offers a different framework for analyzing 'public confidence' arguments. Drawing on psychological survey research about what gives people confidence in the courts, I argue that courts invoking 'public confidence' should focus not on the 'general public' but primarily on those who directly experience the court system, and should concentrate on improving basic elements of procedural fairness that are most important to people’s perceptions of the system. I analyze Caperton within that framework, and then address a specific issue involving jury selection (a context in which average citizens directly experience the court system): how the system should respond when the presiding judge and a potential juror have a close relationship to each other. I argue that even though specific legal rules do not appear to cover this issue, and even though many judges and lawyers might see no problem with it, courts should view the issue from the perspective of an average citizen, who will likely see a threat to basic procedural fairness if the presiding judge and a potential juror have a close relationship.