It’s a fact: Judges make law

In an old "Saturday Night Live" sketch, Steve Martin plays a medieval barber who has just bled an ailing patient to death. Distraught, Mr. Martin begins a monologue exploring the possibilities of scientific testing, of abandoning practices that fail, and of an enlightened era of modern medical science. As a professor of constitutional law, my "medieval barbershop moments" arise when I contemplate Senate confirmation hearings after a member of the Supreme Court resigns.

Just imagine: Instead of Judiciary Committee members reading worn-out scripts aimed at placating the party base and nominees giving well-rehearsed yet vacuous responses aimed at avoiding controversy, the committee members asked thoughtful, probing (and yes, short) questions that the nominees actually answered. We might then witness the candidates elucidating their jurisprudential philosophies, explaining the role of precedent in more than general terms, and seeking to reconcile the role of unelected Supreme Court justices in forging constitutional meaning, one that often limits the powers of the elected branches, or of state actors.


Observers might even gain insight into the actual operations of such concepts as separation of powers, checks and balances, and federalism. And while the nominees would appropriately decline to speculate on how they would resolve specific cases, the process would unmask competing approaches to giving content to such broadly worded constitutional provisions as due process, equal protection and freedom of speech and press — terms that, as recent cases amply demonstrate, do not define themselves.

The phrase "freedom of speech" does not answer whether the First Amendment prevents Congress from limiting corporate candidate advertisements in presidential campaigns. The phrase "equal protection" does not answer whether states that once segregated schools by race may undertake affirmative efforts to avoid retrenchment toward single-race schools even after documented constitutional violations have ceased. And the words "case" or "controversy" do not answer whether a state has standing on its own or on behalf of its citizens to force a federal agency to regulate mobile-sourced greenhouse gases.


We can pretend that answers to such recent Supreme Court cases lie in the text, closer study of original meaning or a more nuanced reading of precedents, thus eliminating any meaningful judicial role in constitutional lawmaking. But that won't make it true.

For me, the lowest point in our recent confirmation history was when then-Judge Sonia Sotomayor retreated from her candid assertion in an earlier speech — one that would not have raised an eyebrow in virtually any law school faculty workshop — that the federal circuit courts are where a lot of legal policy is made. Rejecting the bait of committee members, Judge Sotomayor instead insisted that Supreme Court justices apply but do not make the law. This was deliberately reminiscent of now-Chief Justice John G. Roberts Jr.'s assertion in his confirmation hearing that the role of a Supreme Court justice is that of an umpire calling balls and strikes.

Constitutional lawmaking is not rendered legitimate by pretending, in hearing after hearing, that meaningful answers to most difficult constitutional cases — the sort that the Supreme Court actually decides — can be found in our broadly worded, 200-plus-year-old text, or just a bit more digging into historical context. Rather, it is legitimated by a process in which the judiciary is called upon to resolve issues that implicate open-ended textual provisions as needed to resolve cases or controversies. That process necessarily invites competing methodological approaches and tools in the course of constitutional interpretation.

This does not mean, of course, that all interpretive arguments are created equal. But it does mean that assuming away legitimate disagreements about interpretative methodologies in a judicial process that inevitably entails lawmaking fails to advance understanding about the vital role that the Supreme Court plays in our system of governance.

A candid process would show that in the course of constitutional lawmaking, reasonable minds — and thus, reasonable jurists — can differ in the premises and analyses that they use in resolving hard cases. Jurists can hold differing views concerning the role (and even the possibility) of original understanding, the value of precedent, how constitutional structure informs constitutional meaning, and the extent to which considerations of history — and yes, policy — prove relevant after other considerations have been exhausted. These are fundamental questions in a deliberative democracy, and ones that a meaningful, and teachable, confirmation hearing would explore. Such a process would provide the basis for real insight into the men and women who ascend our nation's highest court.

Let's hope this time for a different ending from Steve Martin's infamous "Naah!" as he wanders off to bleed his next victim.

Maxwell Stearns, professor of law and Marbury Research Professor at the University of Maryland School of Law, is the co-author of "Public Choice Concepts and Applications in Law." His e-mail is