Court Justices Necessarily Make Law


When the Supreme Court issues decisions this summer on the constitutionality of the “individual mandate” under the Health Care Act, and the legality of the Arizona immigration statute, no matter which way they rule, they will be engaging in judicial activism, and they will be making law, and criticism will follow from the right, the left, or perhaps from both directions.

The Court has a challenging job for they do not review obvious legal questions. If the issue is: What is the minimum age to be President? The outcome would be easy, as the Constitution clearly states “Thirty-five.” But the Court never reviews simple questions like that; they instead take cases involving important issues, where there has been a substantial disagreement among the various appellate courts.

While the winners of these cases usually say the law was correctly applied, the losers accuse the Supreme Court of: 1) engaging in judicial activism; 2) ignoring the “original intent” of the Framers; 3) improperly making law; and 4) of not behaving like neutral and objective justices. The Republicans have used these types of arguments for more than 40 years, even though they have had more justices on the Supreme Court than Democrats since 1972.

When conservatives complain of “liberal activism,” they ignore the multitude of cases involving “conservative activism.” All decisions on legal issues require justices to take a stand, by either moving to the left, or to the right. Inaction is not an option. Even refusing to review a case, which amounts to an affirmation of a lower court ruling, can be viewed as liberal or conservative activism. People complaining about liberal activism, or conservative activism, ignore the reality the Supreme Court necessarily moves in one direction or the other.

Conservatives also complain about not following the “original intent” of the Constitution, as if there is only one way to interpret the document. Their Presidential candidates pledge to nominate only those who believe in the “original intent,” as if it could be known, or found easily in some textbook. The truth is there is no singular book to turn to for the answer, because language is imprecise, and the purpose, meaning, and intent of the Constitution is often vague and ambiguous. Law is not an exact science. This is why a judiciary was created, so we had a body whose job it was to construe and interpret the Constitution. No one can now check with the Founders, and even if they could, Jefferson and Adams, among others, had disagreements between themselves, over 200 years ago already, about the intent of the Constitution. Somebody today has to fill the void left by the Founders, and this is why we have a Supreme Court. They are “the deciders.” While everyone would love to know the “original intent,” the truth is it is subject to debate, and justices must apply their best guesses.

As to the allegation the Court engages in law-making, they are correct, but there is no alternative. A judicial decision necessarily becomes a part of our larger body of law. It has always been that way. When the Court turns areas of gray into black and white, they engage in a limited form of law-making. All judges, whether liberal or conservative, necessarily make law.

The final myth is Supreme Court justices should be, or can be, purely neutral and objective. The truth is justices are human beings whose subconscious subjective personal viewpoints necessarily cloud their judgments. The notion of a purely neutral and impartial objective judiciary is nothing more than a childish myth. Judges are human beings who cannot be perfectly impartial in the pure sense of the word.

We need to acknowledge all U.S. Supreme Court justices are partisans. All of them knew a Republican or Democratic Senator, who sponsored their nomination, and none of them got to the Court by accident, or based solely on merit. When the U.S. Supreme Court stopped the 2000 Presidential election recount in Florida, the outcome was relatively easy to predict, based on the politics of the justices. The Court had seven Republican-appointees, and only two Democratic nominees, and when the decision favored George W. Bush, it was really no surprise, since the justices were unable to set aside their personal political biases.

This summer we may expect an activist court to again make law, which will move the nation to the left, or to the right, since the justices are necessarily biased, and just as political as the rest of us.

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