Of course judges shape and build our laws

As we enter the Senate confirmation phase of Supreme Court nominee John Roberts, much will be made of Roberts' ideological identity. President Bush says Roberts can be counted on to interpret the Constitution rather than make law from the bench, but what does this mean? Aren't judges supposed to be involved in the lawmaking process?

High-school students learn early on that legislators make the law, the executive branch executes the law, and the judicial branch interprets the law. However, when we look carefully at the role of the three branches over time, and we examine what the Framers of the Constitution said in supporting documents such as the Federalist Papers, we see a murky historical foundation for prohibitions against "judicial lawmaking."

When James Madison wrote Federalist Papers 10 and 51, he explained a rationale for separation of powers, federalism and representation. This rationale reflected Madison's understanding of human nature. "Men are not angels," he said. So, it was important to pit interest against interest, decentralizing or diluting the power of the majority, which might exercise tyranny over minority voices.

In the Framers' scheme, different branches of government and different levels of government would have separate but overlapping areas of responsibility. They would check each other in several different ways. The reason the unelected federal judges would not become too powerful was not because they had no lawmaking role, according to Alexander Hamilton in Federalist No. 78, but because judges did not have the power of the purse or the sword.

That judges should faithfully tie their rulings to the Constitution rather than making things up as they go is part of our foundation; it is our democratic contract with each other as citizens. But this does not mean that judges do not make law.

Of course judges have an impact on lawmaking. Every time they rule on the meaning or application of a statute, they shape and build our law. Every time they say "no" to the majority of citizens who support a well-meaning law that nonetheless infringes on the constitutional rights of the minority, they shape and build our law. Every time they explain the meaning of a word in the Constitution, they shape and build our law. And every time they consider how the Constitution should apply to a new technology, they shape and build our law.

It is true that sometimes judges will go too far. In the early part of the 20th century, conservative judges ruled in ways that found the right of contract to be embedded in the Constitution. And in the 1960s, liberal judges issued rulings to expand privacy to include a wide variety of things.

In fact, virtually all judges, both liberal and conservative, will "legislate from the bench" when they deem the situation calls for it. As recently as this spring, Justice Antonin Scalia, a staunch "originalist," and others in the majority in the Gonzales v. Raich medical-marijuana case were scolded by Justice Clarence Thomas for legislating from the bench; Thomas felt they had interpreted too broadly the Constitution's "necessary and proper" clause that grants Congress the authority to make laws to carry out the powers of the federal government.

Long ago, I heard a law professor say that the job of judges is to say "no" even when it makes elected leaders angry. From my study of the Constitution, I think this is right. Judges are supposed to say "no" when our elected leaders do things that violate the contract our forefathers drafted.

When the court shapes our law, some of us get angry. But democracy is messy, and in this messiness is its real gift to us. When judges make rulings that we do not like, we go back to the drawing board and think some more about what it means to be a citizen and what we owe each other in a community of people who have different beliefs and ways of life. We think again about the job of government and we talk together about what we want our government to be.

We are better off if we approach these discussions with openness, a desire to learn, and an eagerness to fully understand why the judges did what they did.

I'm happy about the nomination of Judge Roberts to the Supreme Court. From all that I can see, he possesses a brilliant legal mind and a caring disposition. He may not have the pragmatism of a Sandra Day O'Connor, but that may develop — especially in a judge who has so much experience as a litigator.

Roberts seems to have the intellect of a Scalia, but not the dismissive attitude that Scalia uses to denigrate his colleagues in his opinions.

Intellect and humility are good tools for a judge who will shape law, sometimes by saying "no," for years to come.