Judges Don’t Make Law?What’s That All About?

By , May 21, 2010 3:34 pm

by Laura Orr 
Laura Orr is this week’s guest blogger. You can read more of her intrepid legal research reporting on her blog, Oregon Legal Research.

Don’t get me started on the “Judges Don’t Make Law” statements one hears so often at judicial nominee hearings. Were legislators and judges out the day law-making was taught in school?

I’m sure I wasn’t the only one whose eyebrows shot up during the last Supreme Court nominee (now Associate Justice) Sotomayor hearings whenever someone (quite a few someones, in fact) said: “judges don’t make law.” I suppose the point was that judges don’t legislate, but it sure wasn’t coming through very clearly that yes, judges do make law. Really! They do!

Legislating is not the only way laws are created. Forgive me for being so literal, but most members of the public, and not a few of our members of Congress, seemed confused on the point.

If judges don’t make law:

1) Who does? (Each branch of government makes law.)

2) Then why would we need judges? (think about it – what if we didn’t have judges, which we’ve had since the beginning of time, including the Solomons and the Mansfields, and judges before and after?)

3) If judges can “only” rely on precedent (i.e. law), then who made that “precedent?” (Answer: judges)

4) What are all those law reports doing on my law library’s shelves and in the legal databases? “Legal interpretation” reports? “Applied Legal Principle” reports? Those reports (aka reporters) state the law at the time of printing, and sometimes long after.

5) Whatever happened to the “sources of the law” mantra: legislative, executive, judicial, etc. that we all learned in civics class and law school?

There is a reason former Supreme Court Associate Justice David Souter is talking (and doing more than just talking) about improving the teaching of civics.

So the next time you hear a legislator or a judge (or a judicial nominee) say, “Judges Don’t Make Law,” you too can raise your eyebrows – and put a call in to your local bar association or law professor or law librarian, or maybe even your Congressional representatives and ask if a U.S. Supreme Court opinion is Law. Or, just ask the local police officer about those Miranda warnings.

See Our Courts and Oregon’s Classroom Law Project websites.

LLOPS is powered by WordPress • Panorama Theme by ThemocracyLog In