"It is easy to paint a silver-tongued picture of them being a brake on a rampaging majority. But when the entire nation is boiling with rage and pushing forward en masse, have judges ever actually risked their lives to uphold principles and stand in rejection?"
This is a highly valid, cynical question. Judges are human beings too. When all the media is ablaze and 90% of the population gathers in the square holding torches, declaring "This is justice," would anyone truly possess the spine to go against that titanic wave of public opinion and say, "You are all wrong"? In the end, is not the true face of a politicized judiciary one that glances at power, glances at the crowd, and sheepishly raises the hand of the majority?
Yet, remarkably, history holds solitary verdicts where—while the entire world ran amok in a single direction—judges threw cold ice water on the faces of the masses, slapping them back into reality to uphold principles. Precisely because they were an "unelected power," they did not have to worry about the next election. Shielded solely by the ironclad rules of the constitution, these were the moments they blocked the path of an enraged mob.
"I, too, loathe them. And yet…"
In 1984, in the United States, a young man named Gregory Lee Johnson burned the American flag—the ultimate symbol of the nation—in a public space to protest the policies of the Reagan administration. At the time, American society was swept up in a fierce wave of patriotism, and the entire nation boiled with fury, demanding he be thrown into prison immediately for insulting the fatherland. Congress and state governments, catering to the will of the enraged majority, enacted "flag desecration laws" and arrested him. In the eyes of the public, it was the perfect execution of justice.
When this case ascended to the Supreme Court, the nine justices handed down a monumental ruling amidst nationwide condemnation and death threats. By a narrow margin of 5 to 4, they declared: "The act of burning the flag constitutes a form of ‘freedom of speech’ guaranteed by the Constitution, and therefore, laws punishing it are unconstitutional."
Antonin Scalia, a conservative justice at the time, later confessed in a private setting:
"I, too, loathe people who burn the American flag. My personal conscience and emotions made me want to throw them into prison immediately. However, what I must protect is not my subjectivity, but the ‘constitutional principle’ that guarantees even the speech that I utterly despise."
It was a moment when the madness of patriotism, pushed forward by a majority vote, was flatly rejected by unelected judges wielding the ice-cold reason of the constitution.
Protect the Villain by the Book, Even if the Nation Rages
In the modern history of the Republic of Korea, there have also been moments where the burning vengefulness of the public collided head-on with constitutional principles. These were the moments when the National Assembly attempted to introduce retroactive legislation (punishing past actions with a law created later) to match the public sentiment and penalize heinous criminals or figures from past authoritarian regimes who had provoked nationwide fury.
In terms of public sentiment, these were villains who deserved to have their entire assets confiscated and be hanged in the public square. The entire citizenry agreed, and the parliament passed the punitive laws by an overwhelming majority vote. Yet, the Constitutional Court slammed on the brakes with merciless force: "No matter how intense the public sentiment may be and no matter how noble the intention, we cannot shatter the constitutional principle that criminal penalties cannot be applied retroactively (the prohibition of ex post facto laws)."
At the time, the justices were treated as traitors by the entire populace, facing accusations like "Are you on the side of criminals?" or "Are you defending traitors to the nation?" However, what they were protecting was not the well-being of those villains. It was the ultimate instinct of the judiciary, recognizing that if the state begins to dismantle legal principles using public sentiment and majority rule as an excuse, that very blade will eventually turn against innocent citizens and minorities.
The Value of a Brake That Takes the Arrows of Condemnation
Of course, real-world judges are not always this heroic. As you have rightly criticized, there may be far more cowardly verdicts that read the room of public opinion and quietly hitch a ride on the interests of the majority.
Yet, the reason we maintain and refuse to entirely dismantle this precarious, seemingly arrogant judicial system is because of these "moments of rejection" that appear ever so rarely in history.
A system where, when everyone else is frantically rushing in one direction, a mere nine individuals can hold a single constitutional clause in their hands and say, "What you have pushed forward via majority rule is wrong." Perhaps the true democratic legitimacy of the judiciary does not spring from obtaining votes from the public. Rather, it is proven in those solemn, lonely moments when they quietly absorb the condemnation of the entire nation to shield the rights of the minority and the principles of law that the majority is trying to tear down.
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