The national debate on Supreme Court nominations is dominated by a larger debate over the most controversial social issues of our time. More specifically, the debate is dominated by a disagreement as to who has the final word on these issues. Who should decide whether abortion or gay marriage is legal in the United States? Congress or the courts? 

Generally speaking, strict constructionists say that congress or a state legislature should decide. The judicial philosophy of strict constructionism advocates for judicial restraint. Judges should strictly construe and apply the law as it stands. And the Constitution says nothing about gay marriage. 

The average legal Darwinist, however, would give the courts the authority to decide. Legal Darwinism stands for the proposition that our Constitution evolves through the judiciary's interpretation of an ever-changing public sense of justice. 

In a recent op-ed published by USAToday, Duke Law professors Erwin Chemerinksy and Catherine Fisk call for a more accurate framing of the debate over the nomination of Judge John Roberts and the role of the Supreme Court. The thesis of their piece is best introduced by its title, "Judges do make law -- it's their job." 

Chemerinsky and Fisk assert that "every lawyer knows that judges make law," and thus, the conservative outcry against "legislat[ing] from the bench" consists of "[m]isleading and silly slogans." According to them, we can argue about what kind of law Judge Roberts should make, but the role of judges as lawmakers is not up for debate. To back up this proposition, Chemerinksy and Fisk cite to the law of torts (examples of torts include assault, battery, defamation, and negligence), property, and contracts. Granted, all three of these areas of the law have a substantial judge-made component. 

Few, however, are concerned with Judge Roberts' take on torts law. Why? First off, torts are generally handled by state judges. And since the judiciary's heavy involvement in the creation of torts law precedes the Constitution, most conservatives don't see its continued involvement as something new or radical. Moreover, if a state legislature disagrees with their courts' formulation of a particular tort, they can generally override the judge-made law by statute. 

As Chemerinsky is well aware, strict constructionists are primarily concerned with constitutional law. Since the Constitution is the supreme law of the land, no legislature can override its provisions by statute. If the Supreme Court is allowed to simply "make" constitutional law, there is no legislative check on this power. 

Chemerinksy and Fisk argue that "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.'" The professors are absolutely right. The Constitution must be interpreted in order to be applied. 

There is a genuine debate, however, between strict constructionists and legal Darwinists as to what a judicial interpretation should involve. Strict constructionists look to the words of the Constitution informed by history and the Founding Fathers' intent to determine its plain meaning. Legal Darwinists attempt to use contemporary ideas of justice to create new law. That's a big difference. 

Despite arguments to the contrary, there is a legitimate need for the American public to debate this difference. The phrase, "legislate from the bench," is more than a mere "slogan," it represents a legitimate concern. Remember the separation of powers and the dangers of tyranny? Anyone? 

In the sense that interpretations differ, or that state courts continue to oversee the common law in the absence of statutory authority, Chemerinsky and Fisk are right: Judges do make law. The careful reader will note, however, that their argument breaks down if extended to constitutional law. 

Not all lawyers agree that judges and justices of the federal courts should rewrite the Constitution on whim. And true conservatives are not okay with "rock star" activist judges who happen to rule in their favor. 

Undeniably, there are judges who "make" constitutional law. Michael Newdow passed the 9th Circuit, didn't he? But I am not being disingenuous when I say that legislating from the bench is wrong. Legal Darwinists and strict constructionists are locked in an ongoing debate. We can disagree as to which judicial philosophy is best for America. But we must recognize that protests against judicial activism and legislating from the bench are more than slogans or campaign-speak. 

Some judges do make constitutional law. But in the opinion of strict constructionists, it's not their job.

Copyright © 2005 by John T. Plecnik. 

John T. Plecnik (JTP) is a 21-year-old law student at Duke University, where he serves as Senior Note Editor of the Duke Journal of Constitutional Law & Public Policy. Homeschooled from cradle to college, John graduated from Belmont Abbey at the age of 19. He finished summa cum laude, sharing the title of Valedictorian. Author's website.

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