Dr. Aharon Barack, former Chief Justice of Israel, in his acclaimed work “Judges in a Democracy” underlines that transient “popular” notions of justice can never be the basis of a proper verdict. He summarises this paradox as follows:
…An essential condition for realising the judicial role is public confidence in the Judge. This means confidence in judicial independence, fairness and impartiality. It means public confidence in the ethical standards of the Judge. It means public confidence that Judges are not interested parties to the legal struggle and that they are not fighting for their own power but to protect the constitution and democracy. It means that public confidence that the Judge does not express his own personal views but rather the fundamental beliefs of the nation…. This fact means that the public recognises the legitimacy of judicial decisions, even if it disagrees with their content.
The precondition of “public confidence” runs the risk of being misunderstood. The need to ensure public confidence does not mean the need to ensure popularity. Public confidence does not mean following popular trends or public opinion polls. Public confidence does not mean accountability to the public in the way the executive and the legislature are accountable. Public confidence does not mean pleasing the public; public confidence does not mean ruling contrary to the law or contrary to the Judge’s conscience to bring about a result that the public desires. On the contrary, public confidence means ruling according to the law and according to the Judge’s conscience, whatever the attitude of the public may be….