FICHAMENTO

-Public backlash: Intense and sustained public disapproval of a judicial ruling,

accompanied by aggressive steps to resist that ruling and to remove its legal
force.
-Possible outcome: they affect national politics in such a way that they
undermine the very cause they are trying to promote.
When facing this possibility, there is no general rule or abstract answer.
In each case there are assumptions which must be made to determine the
desirability of a ruling against many minds resistance (strength of democratic
institutions; capacities of courts and citizenry).
-Double effect: it may deter both desirable and undesirable rulings.
-Constitutional methods + institutional capacities = whether the risk of backlash
should determine or not a courts ruling. E.g.: if constitutional interpretation must
ratify the founders will, then courts should decide accordingly, regardless of the
risk of public backlash. If they are, for their turn, moral representatives of the
people, public backlash should be determinant in their rulings.
- OLYMPUS: Courts (right) x Public (wrong) on moral rulings.
- Such a view implies that judges are morally superior to the People in
assessing values and determining whats right or wrong.
BICKEL
- Insulation. They are capable of long-term thinking and are not subject to
short-term pressures including, sometimes, public backlash
- Passive virtues The need of Courts to conciliate both Principles and
Necessity (Feasibility?)
- Judiciary X Legislative: uphold; contest; abstain.
GUNTHER
- Courts should ALWAYS uphold Principles
Example B x G: ban on interracial marriages ruling.

- LAND OF THE ANCIENTS: Constitutional interpretation is bound to originalist

terms + Courts decide according to these interpretations.
- Courts (legally sound) x Public (legally irrelevant);
- Courts allow supplementation of rights, but not suppression;
- Counterargument: no society can be one hundred percent originalist one
hundred percent of the time
- the Land of the Ancients is pretty close to Olympus

- strong presumption that backlash is im-material it may not be, and this fear
might well stay a judges hand;

LOCHNERLAND: Constitutional interpretation on moral judgement; Interpreters

are bound to legality (though there is discretionary power) + Courts (unreliable)
x Public (well-justified)
- Judicial error We can think of Thayerianism as a generalization of the
idea that courts should anticipate backlash and be cautious if it is likely to
occur.
- Thayerian approaches emphasize the likelihood of judicial error;
- Attention to public backlash here, it produces better outcomes
- Popular Constitutionalism, Jeffersons Revenge, and Condorcet:
- When judges make constitutional judgments on their own, there
is a serious risk of error;
- Here, the public is probably right, so the Condorcet Jury
Theorem makes a strong point;

ATHENS: Courts - not especially good or bad, on the long term; within a wellfunctioning democracy (reflection and reason-giving with accountability) x Public
their judgements must be taken seriously for democratic reasons whether or
not they are likely to be right.
- Thayerianism commitment to democratic self-government; justification for
judicial modesty
- Flaw: the preconditions to democracy must be indisputable, even by the
general public;

AMENDIANA: Constitution allows popular majorities to reject judicial rulings or

to make constitutional amendments essentially as they wish.
- There is no great need to fear judicial err or public backlash,
because ruling may be overridden;

In the end, there is no general, abstract answer about this subject.