Making Law on the Supreme Court

By Kevin Baine
Tuesday, June 9, 2009

There is something profound, but also something superficial, about the debate that occurs every time a Supreme Court justice is nominated. The debate is profound because it probes the delicate role of an independent judiciary in a democracy. But it becomes superficial when it turns into an argument over whether judges should be making law or simply interpreting it. For a nominee, the safe answer is that the Supreme Court should interpret law, not make it. It would be refreshing, however, if the nominee acknowledged that courts, including the Supreme Court, make law all the time -- and then explain how they do so.

The most basic rules and policies that govern our relations with each other were developed entirely by judges -- for the most part, by state judges. These include ancient principles that are not remotely controversial -- that we have an obligation to honor our contracts, and that we can be held liable for damages caused by our negligence -- as well as more modern variations, such as the law of strict product liability. So never let it be said that judges do not make law or policy.

When the courts are faced with a statute or a constitutional provision, however, their job is to interpret law made by others. That is a fair statement, but not a particularly helpful one. In the landmark case of New York Times v. Sullivan, for example, the Supreme Court ruled that a public official cannot recover damages in a libel suit unless the offending statement was made with knowledge of falsity or reckless disregard for the truth. Yes, the court was interpreting the First Amendment, but the First Amendment doesn't say anything about what the law of libel should be. So was the court not "making law"? Of course it was, but appropriately so.

The controversy arises principally when the court strikes down a law enacted by Congress or a state legislature. That was what the court did in the infamous Dred Scott decision, which struck down the Missouri Compromise that prohibited slavery in parts of the Louisiana Territory. But that was also what the court did in Brown v. Board of Education, when it declared state-mandated school segregation unconstitutional. That was what the court did in Roe v. Wade, when it invalidated state laws prohibiting abortion, and this term, when it struck down the District of Columbia's gun-control law.

In today's political terms, one of these decisions could be labeled conservative, one liberal, one mainstream and one racist. What made all of them controversial was not that the court was making law but that it was remaking law enacted by elected representatives. The presumption in a democracy is that the majority rules, and frustration results when unelected judges set aside the majority's rules. The frustration is tempered if the court bases its decision on clear-cut constitutional rights or if the explanation resonates at some basic level even among those who are disappointed in the outcome. But clear-cut cases are rare for the Supreme Court. If the Constitution's meaning in a case is clear, the case will probably be resolved by the lower courts.

So how should a Supreme Court justice go about resolving the constitutional issues that divide the court? That is the question the Senate will be exploring with Judge Sonia Sotomayor.

The questions will focus on specific issues -- whether, for example, the nominee agrees that the Constitution protects the right to choose an abortion. Concerns will be expressed, and assurances given, in familiar terms -- that the nominee is or is not a judicial activist or does or does not believe the court should make law or policy. The real debate, however, will be over who gets to decide the most controversial issues of the day -- elected representatives who are responsive to majority will or an independent judiciary that is (relatively) immune from public pressure.

Everyone has an opinion about abortion, same-sex marriage, gun control and affirmative action. But we should care as much about who decides these issues as we do about what decision is made. Calling something a "constitutional right" means that the court, not Congress or state legislatures, has the final word -- in every sense. Legislation is by its nature tentative. It can be revoked at any time for any reason. A constitutional decision by the Supreme Court, however, is for all time. It is a statement that a principle is so fundamental that it cannot be subject to majority rule, now or ever. That is what the Supreme Court is deciding when it declares something a matter of constitutional right. It is the kind of judgment that a justice must be confident enough to make at times, but modest enough not to make too eagerly.

Kevin Baine is a First Amendment lawyer who clerked for Justice Thurgood Marshall in the 1975-76 term. His clients include The Post.

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