Some judges do make constitutional law – but it’s NOT their job
By John T. Plecnik (09/05/05)
The national debate on Supreme Court nominations is dominated by a larger debate over the most controversial social issues of our time. More specifically, the debate is dominated by a disagreement as to who has the final word on these issues. Who should decide whether abortion or gay marriage is legal in the United States? Congress or the courts?
Generally speaking, strict constructionists say that congress or a state legislature should decide. The judicial philosophy of strict constructionism advocates for judicial restraint. Judges should strictly construe and apply the law as it stands. And the Constitution says nothing about gay marriage.
However, the average legal Darwinist would give the courts the authority to decide. Legal Darwinism stands for the proposition that our Constitution evolves through the judiciary’s interpretation of an ever-changing public sense of justice.
In a recent op-ed published by USA Today, Duke Law professors Erwin Chemerinksy and Catherine Fisk call for a more accurate framing of the debate over the nomination of Judge John Roberts and the role of the Supreme Court. The thesis of their piece is best introduced by its title, “Judges do make law – it’s their job.”
Chemerinsky and Fisk assert that “every lawyer knows that judges make law,” and thus, the conservative outcry against “legislat[ing] from the bench” consists of “[m]isleading and silly slogans.” According to them, we can argue about what kind of law Judge Roberts should make, but the role of judges as lawmakers is not up for debate. To back up this proposition, Chemerinksy and Fisk cite to the law of torts (examples of torts include assault, battery, defamation, and negligence), property, and contracts. Granted, all three of these areas of the law have a substantial judge-made component.
However, few are concerned with Judge Roberts’ take on torts law. Why? First off, torts are generally handled by state judges. And since the judiciary’s heavy involvement in the creation of torts law precedes the Constitution, most conservatives don’t see its continued involvement as something new or radical. Moreover, if a state legislature disagrees with their courts’ formulation of a particular tort, they can generally override the judge-made law by statute.
As Chemerinsky is well-aware, strict constructionists are primarily concerned with constitutional law. Since the Constitution is the supreme law of the land, no legislature can override its provisions by statute. If the Supreme Court is allowed to simply “make” constitutional law, there is no legislative check on this power.
Chemerinksy and Fisk argue that “Supreme Court justices must interpret the broadly worded provisions of the Constitution and decide the meaning of vague terms that protect ‘liberty’ or prevent government from the ‘establishment of religion’ or from imposing ‘cruel and unusual punishment.’” The professors are absolutely right. The Constitution
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