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Politics The Supreme Court does make law

16:55  26 october  2020
16:55  26 october  2020 Source:   thehill.com

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In defending the judicial philosophy of Amy Coney Barrett, her supporters offer an often stated claim. They assert that judges should apply the law and not make the law. But the assertion that judges should not make the law relies on a fundamental misread of the role of courts within the common law tradition of the United States.

a large white building: The Supreme Court does make law © Getty Images The Supreme Court does make law

Under common law, judges not only resolve the controversies before them but, in doing so, write opinions that explain their decisions and identify the legal principles and factual conclusions upon which the decisions rest. These opinions are designed to persuade the litigants and the public that the case was decided fairly and in accordance with law. But the written opinions also serve as a source of law for future controversies. In this way common law courts resolve individual disputes and, at the same time, issue opinions that create legal precedent which guides future behavior and informs subsequent decisions.

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In writing opinions that will serve as precedent and in relying on precedent as a source of law, the Supreme Court functions under common law. The justices who write these opinions are unquestionably engaged in making law, not merely in applying law. For instance, the entire body of law regarding freedom of expression has been created by the Supreme Court. The First Amendment states "Congress shall make no law abridging freedom of speech or of the press ...."

The text seems clear. But, reading the text alone fails to capture the scope of the provision. We know, because the Supreme Court has told us, that "no law" does not really mean "no law." And the proscriptions of the First Amendment are not limited to Congress. They apply to the executive branch and to state and local governments as well. Moreover, the First Amendment extends its protective reach beyond "speech" and "press" as it also guards against government censorship of books, movies, artwork and other forms of expression.

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These deviations from the text of the First Amendment and the expansion of free expression beyond its narrow words were accomplished entirely by judicial lawmaking. The First Amendment prohibition of pre-publication censorship that was invoked in the Pentagon Papers case was a creature of judicial lawmaking. So too were the principles of "symbolic speech" that allowed a student to wear a black armband to class in protest of the Vietnam War; and the general prohibition of "vague" enactments that secured the free speech rights of civil rights marchers in Birmingham, Alabama.


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In fashioning each of these legal doctrines the Supreme Court was making law. The claim that judges should not "make law" rests upon the assertion that such authority becomes a license for broad policymaking and unrestrained judicial influence. But, judicial lawmaking is not unrestrained; nor should it be. Restraints come from well-accepted protocols of the judicial process. They come from the obligation to defend judicial decisions in publicly-issued opinions; from the need to rest the decisions upon careful fact-finding based on publicly-disclosed evidence; and from the requirement that the decisions reflect reasoned outcomes drawn from legal principles. Respect for judicial precedent also provides an important restraining influence.

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Barrett urges that excessive judicial influence can be avoided if the Supreme Court limits its interpretive functions to the constitutional text and its original understanding. But, when engaged in the adjudicative process, judges do not ignore the textual provisions they are considering. Indeed, the text is generally the starting point for any analysis by all judges regardless of their interpretive philosophies.

Judges try to capture the intent of the framers and the original understanding of the text where possible. However, the original understanding cannot always be recaptured. Moreover, a complete judicial analysis must extend beyond text and beyond any original understanding, and should not ignore the policies served by the text and the application of the principles that emerge from it.

The genius of the common law system is that it provides both stability and flexibility as the law develops to address new circumstances. As applied to constitutional controversies, the process allows our foundational document to evolve and adapt. The claim that judges should "apply" but not "make law" represents a crude and erroneous attempt to constrain this notion of the Constitution as a living document.

Since judicial interpretation often involves lawmaking, this claim rests upon a false dichotomy. It is one that misleads the American people regarding the proper role of the Supreme Court. And it invites unfair disparagement of the institution when it pursues its historic obligation to adapt new understandings of liberty and equality to the needs of an evolving social culture.

Arthur Eisenberg is the executive counsel with the New York Civil Liberties Union and is an adjunct professor with the Benjamin Cardozo Law School.

Fact check: There is no Sen. Rob Donaldson, so posts of his speech about Barrett are fake .
A post on new Supreme Court Justice Amy Coney Barrett originated as a hypothetical. It took off, with many people assuming it was from a real senator.Several Facebook posts shared in the wake of those hearings include a long comment appearing to be a transcript of a speech made by a Sen. Rob Donaldson before the committee.

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