Popular sovereignty and the judiciary: How the United States Supreme Court regards public opinion in fair-trial free-press decisions

The 1992 riots in Los Angeles are powerful reminders of the common law principle that the ability of the courts to administer criminal laws depends on public opinion. Public opinion, which is basic to self-government, is an important check on the judicial branch. Because the judiciary, especially the U.S. Supreme Court, is relatively isolated from the electorate and public opinion, it is important in the exercise of self-government to examine what the Court says about public opinion. Using a combination of legal research and contextual content analysis, this study examined twenty-one fair-trial free-press decisions over a thirty-year span, from the Warren Court to the Rehnquist Court.;The Court' s fair-trial free-press decisions gather many of the justices' notions about public opinion and its relation to government, especially the judicial branch. Most of the mentions were identified as rules, procedures, arguments, or suppositions. Twenty-five were identified as judicial principles of public opinion. The principles were placed in a schematic representation of the theoretical framework of constitutional democracy. Popular sovereignty principles were placed on the democratic branch of the diagram; principles of First Amendment and Sixth Amendment interpretations were placed on the constitutional branches; and common law principles were placed on the Sixth Amendment-common law branches of the diagram.;The common law had recognized the right of trial by an impartial jury, and the even older right of a public trial. The Sixth Amendment guarantees those ancient rights. The Sixth Amendment right to a public trial is an important connection with public opinion, which is represented by the jury while the people retain rights of access to the judicial system. But the Constitution's connection to popular sovereignty is cemented with the First Amendment, which ensures that citizens can effectively participate in and contribute to their republican system of self-government. The judiciary has an affirmative duty to ensure that the judicial branch is accountable to the people. While judges must ensure that juries are impartial, they are not empowered by the Constitution to use their common law rules to restrict the sovereignty rights of the people or their surrogate, the press.