Judges do make law — it's their job
By Erwin Chemerinsky and Catherine Fisk
Misleading and silly slogans about what judges do are dominating the debate about Supreme Court nominee John Roberts. President Bush and Republican politicians constantly repeat, as a mantra, that Roberts is a desirable choice because he won't "legislate from the bench" and will merely "apply the law, not make it." But every lawyer knows that judges make law — it's their job. In fact, law students learn in the first semester that almost all tort law (governing accidental injuries), contract law and property law are made by judges. Legislatures did not create these rules; judges did, and they continue to do so when they revise the rules over time. Indeed, one of the most fundamental doctrines of American law — the authority of courts to declare laws unconstitutional — is entirely made by judges. Nowhere does the text of the Constitution mention the power of judicial review, and it may fairly be debated whether the framers of the Constitution intended to create such a power. 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." A few examples
For example, more than 60 years ago, the court considered an Oklahoma law that required the sterilization of anyone convicted twice of a felony involving moral turpitude (in that case, the crime was robbery). The court held that the law did not provide equal protection and added that forced sterilization was unconstitutional because the right to procreate is a fundamental aspect of the liberty protected by the Constitution. The justices were "making" the law. Likewise, in the landmark decision of Brown v. Board of Education, the justices "made" the law in deciding that the equal protection clause prohibited racial segregation in schools and in...
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