Did you hear the one about judges making law?

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.

3 Responses to “Did you hear the one about judges making law?”

  1. richl Says:

    Thank you Steve that does indeed clarify the process.

  2. Simon Jester Says:

    Thanks for the clarification, Steve. Thinking about it, I have an idea of what the Repugnicans might be thinking about on this, and would like you take on it.

    Could it be that their fear of ‘activist judges’ ‘making law’, they are concerned about the possibility that the decisions made by these judges could be used as precedent in other cases? As you’ve described, it is the use of precedent from cases that is how such ‘laws’ are made. There have been recent cases in which the judge (or justice) asserts in the decision that it may not be used as a precedent in subsequent cases, and I think this is a clue to their way of thinking.

    The right’s world-view seems to be all about control, and I posit that they are afraid that they can lose some of their power a bit at a time through a series of small precedents. They have therefore built a strawman ‘activist judge’ to label people they are afraid of, such as Judge Sotomayor, with.

    What do you think?

    From Steve: For what it’s worth, here’s my take. For years the far right has been obsessed — and I mean that literally — with gaining control of the federal judiciary. They’re convinced it’s the route to the Promised Land. And they came so close — so incredibly close. But as conservative as the Supreme Court became, somehow they could never get over the hump on the one issue that matters to them most — abortion. Actually, they gained a lot of ground, as the Court gradually allowed more and more restrictions on the procedure. But to the true believers that isn’t enough. Nothing will satisfy them short of having Roe v. Wade overruled. And now, with Obama in office and making appointments, that dream seems to be slipping out of reach.

    And the true believers are becoming desperate (and people like Rush are using that to make money).

  3. Larkrise Says:

    True Believers, i.e. the Far-Right Fanatics-are indeed becoming desperate. They are in a frenzy of fanaticism at this point. Their inherent racism and bigotry is virtually spilling over into a steaming gutter of virulence. The rhetoric they are aiming at Judge Sotomayor shows not only their true colors; but the depth of their viciousness, both political and personal. They sound like a bunch of cross-burning, gun waving, venom-spitting freaks. They are attacking her race, her gender, and her personality and her intelligence. They have even sunk so low as to mention menstruation, as though that is a mental illness. Next, they will be screeching that she doesnt wear a chastity belt! It is sick and disgusting. There is no dignity and no decency in it. It is patently meant to incite hatred and hysteria. The hatemongering has sunken to a level so low, it is approaching the fires of Hell. If I could draw cartoons, I would picture winged gargoyles with the faces of Limbaugh, Hannity, Beck, Coulter,Rove, Steele et. al. flying out of the flames of Hades and spewing venom over the the honest citizens of this country. Only the most ignorant, crude, violent or self-righteous individuals could listen to them and tolerate their loathesome comments. These people are a negative influence on our society. We must all make it very clear that we put them in the same category as the KKK, Neo-Nazis and Skinheads. We must marginalize them and their rhetoric; and send them back to the cesspools from whence they came. I hope they have stepped over the line so far this time, that they self-destruct. May they hoist themselves upon their own petards.

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