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When it comes to the otherwise uber-contentious question of what constitutes the proper role of judges and judging in our nation, there’s one thing that the left and the right seem to agree on — one single immutable truth that transcends even the most extreme of partisanship: judges, according to this widely accepted wisdom, are not supposed to make law. President Obama sure seems to agree. In announcing Judge Sonia Sotomayor’s appointment to the Supreme Court, he said one of the biggest reasons he chose her was because she has “an understanding that a judge’s job is to interpret, not make law.”
Republicans, of course, claim to fully agree. Indeed, they’ve been happily flogging so-called “activist” judges who “make law instead of just interpreting it” for decades. It’s one of their best fundraising tools.
So there you have it: enough feel good post-partisan consensus to warm even the cockles of David Broder’s heart. Judges interpreting law is good: judges making law is bad. It’s a bipartisan given: a deeply held and widely shared cultural truth. Too bad it’s also unmitigated nonsense.
Do judges make law? Of course they do. It’s part of the job — what they get paid for. In fact, if you ever run across a federal appeals court judge, someone like Sonia Sotomayor, who doesn’t make any law, fire her (or, more precisely, impeach her). She’s not earning her paycheck.
What we have here is a massive failure of civics education in this country. The sorry state of things is that most Americans, including many of our national leaders, lack even the most rudimentary understanding of the role of courts in American life. So let’s review.
It is, of course, true that only legislatures are supposed to pass statutes. But statutes have never been anything close to the sole source of law in our constitutional system. Ours is a common law legal system (as opposed to some European nations and to some extent the state of Louisiana which follow a Civil Law system).
And guess what: the common law, by its very definition, is judge made law. Seriously, look it up. Here, for example, is the definition offered by that final arbiter of all knowledge in today’s world, Wikipedia: “Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals (called case law), rather than through legislative statutes or executive action.”
“Law . . . developed through decisions of courts”? Egad! That sort of sounds like judges making law, doesn’t it? And that’s bad, right?
Here’s something else: this whole seditious judge made common law thing is discussed in the United States Constitution. Check out the Seventh Amendment which says, “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . .”
Allow me to repeat: Egad! This unholy process of judge made law is actually enshrined in our constitution! Although come to think of it, those Founding Fathers did always strike me as a bunch of commies (although at least there were no uppity Hispanic women in the bunch).
Allow me to say it for you: “The sky is falling! The sky is falling!”
But it get’s worse. Judges “make law” in other ways too. Every time a court construes a statute or a section of the constitution, thereby clarifying its meaning in a way that changes how it is applied, that court “makes law.” Trying to differentiate between interpreting law and making law is like claiming a vast moral distinction exists between frankfurters in a bun and hot dogs: they’re the same freaking thing.
The issue isn’t whether judges make law — they do. The issue is whether they do so in a restrained way that is respectful of our democratic institutions. And unfortunately, at least in recent decades, it’s been conservative Supreme Court justices, not liberals, who have too often failed on that account, striking down congressional enactments as unconstitutional with an alarming frequency.
And this, of course, brings us back to Judge Sotomayor who, whatever her other virtues and faults, has always shown great restraint in her opinions.
Will she make law on the Supreme Court? Well, duh, yeah, I would hope so. But there is absolutely nothing in her record that even begins to suggest she will do so with a heavy hand or in an otherwise improper fashion.
To be honest, her appointment concerns me a little, as a liberal, because I’m not sure she’s liberal enough to start returning a little balance to a Supreme Court which at present tilts dramatically to the right. And we need that sort of balance on the Court badly. But to suggest that her record implies that she’ll be some sort of wild activist in the role of a justice, as so many right wingers are now claiming, is simply a lie.
And I don’t know about you, but my mother always taught me that it isn’t nice to lie.