Judges’ apparent mishandling of the fair laws, like the rights guaranteed by the Constitution, may be part of the problem, but I think it is important to distinguish between two different aspects of the courts’ work that can undermine citizens’ belief in the rule of law.

If any particular outcome seems wrong or disingenuous from an analytical legal perspective, it may actually be wrong, in the sense that it ignores or misapplies controlling law. Or a series of outcomes may seem unjust after statistical analysis because they treat a particular minority differently than others. In those cases, where judges are manifestly unfair, judges ought to bear more of the blame.

But blows to public confidence in the rule of law may also arise from a general mistrust of legal analysis itself. For example, you are no doubt aware of the common complaint from those on the Right that “criminals” are too often acquitted “on a technicality.” Meanwhile, their counterparts on the Left are equally indignant when courts offer what they see as disingenuous rationales for “trampling” on “basic human rights.” Judges whose decisions receive such criticism almost certainly labor under the good faith belief that they are correctly applying or interpreting the law, but the complaints from both Left and Right have in common a sense that judges stubbornly use and misuse legal analysis to obtain outcomes they must privately know are “wrong.”

In those cases, some blame may justifiably lay with judges—good luck proving it, though—and some perhaps lies with the slowly-evolving doctrines employed by the judges. But as to public confidence in the rule of law, whether people believe that law provides the best governance, a large part of the blame must fall to our society as a whole, either for perpetuating a needlessly technical body of laws or for dumbing ourselves down until only specialists can exercise reasoned analysis, or both.

In other words, even when judges come to the substantively and justly “correct” outcomes, people on one side of the political spectrum or another will revile those judges for deploying sophisticated and disingenuous “rationalizations” to come to the conclusions they did. (Think, for example, of the outcry from some quarters over the Supreme Court’s recent holding in Boumediene v. Bush.)

In that sense, even if cases continue to be decided in exactly the same ways, there is still room for improvement of public confidence in the rule of law by promoting better public understanding of the deliberative and analytical processes of judges—even when they get things wrong.

Yet, as you (rightly) note:

“[B]efore you can have a law-abiding society, you need people who believe in laws—people who believe that standard rules, equally applicable to everyone, are the best way to maintain a healthy society. People also need to believe that those rules are fair in themselves and that they really are applied equally to everyone.”

While there are definitely unfair laws, the bigger problem is that the fair laws are ignored or treated almost as recommendations, but seldom actually enforced. I’m speaking, of course, of the Constitution. Thus, it’s difficult for people to have that faith in the law, when they see that the laws which exist to ensure fairness and justice are (mis)handled by the courts.

It’s no accident that my local paper carried a story today noting the 20th — yes, the TWENTIETH — exoneration by DNA in Dallas in just the last few years. The rules enshrined by our Founders were meant to prevent this sort of thing.

As Blackstone’s Commentaries noted just past the mid-1700s and as the United States Supreme Court more recently stated in 1970, our Founders held “a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.” In re Winship, 397 U.S. 358, 372 (U.S. 1970).

It is our courts — thus our judges — who are responsible for the actualization of this fundamental value.