The idea that the Supreme Court can make policy shouldn't be controversial after its decisions in two of the most contentious cases of the term that ended last month, one involving voting rights and the other affirmative action. In the voting-rights case, Chief Justice John Roberts produced the most impressive example of judicial statesmanship of his tenure by persuading all but one of his fellow Justices to converge around a result that never occurred to Congress when it passed the Voting Rights Act in 1965. A prudent demonstration of judicial policymaking, the decision was widely praised by liberals and conservatives for inviting a dialogue with Congress and avoiding a high-stakes confrontation over the constitutionality of the Voting Rights Act. (See the top 10 Supreme Court nomination battles.)
And in Ricci v. DeStefano, the closely watched affirmative-action case, the court was criticized by liberals — and praised by conservatives — for inventing a new legal standard to determine when cities can throw out promotion exams that have discriminatory effects on minority firefighters. Whether or not you like the decision, there's no question that the court was making policy, coming up with a pragmatic rule that Congress never passed on its own.
I would be curious to know just how many liberals like Rosen really feel this way. This is a remarkable admission. Conservatives, and especially those that consider themselves strict constructionists, have always suspected that when liberals claim the constitution is living and breathing what they really want is a legislator on the bench. Folks of all philosophies would like to see policies enacted that simply don't have enough electoral support. Some of those would like to see the courts enact those policies that the legislature can not. That's when we get into an area of judicial activism.
Rosen is, in my opinion, wrong both on a philosophical level and in the manner he justifies his philosophy. There are several reasons we don't want judges to legislate from the bench. First, if they legislate, then what do the legislators do? Ultimately, Judges' powers are limited by the limits they set on it themselves. Once a case reaches the Supreme Court there is no higher authority. Whatever the ruling, there is no other place to appeal. If judges take it upon themselves to make law, there is really no one to stop them. Supreme Court justices are appointed for life so they would not only be drunk on power but literally unstoppable.
Rosen's examples are dubious at best. Roberts was NOT making law but interpreting it. Some laws are very specific leaving little to no room for interpretation. Others are very vague leaving the courts to interpret the law given the specific set of facts in front of them. Frankly, it's beside the point. Even if there are examples of judges legislating from the bench with positive results, that ultimately proves nothing. Just because a judge is able to make good policy on some occasion doesn't mean that's what we want. I'm sure judges are perfectly capable of making policy and often good policy. That doesn't mean we ever want that to happen. That isn't their role.
What's amazing is how cavalierly Rosen dismisses the mandates of the Constitution. It apparently is of minor consequence that the Constitution is clear about which branch makes law and which interprets them. Rosen seems to feel that somethings are more important than Constitutional duties. The one good thing is that I believe that Rosen's belief system is shared by many on the left side of the political sphere. It's good that Rosen unmasked the view of many like him.