Someone must have really pissed off wine afficionado Stephen Bainbridge about this ought-to-have-been-obvious point that so often gets dressed up in political rhetoric and trotted out to whore for votes. Money quote (for me, at least): “…the notion that judges find law that somehow was missed – like an explorer discovering some lost continent – is absurd. Judges make law.”
When judges make law concerning the interpretation of securities regulations, or when they make law about the allocation of third-party indemnity in complex insurance disputes, effectively no one gives a damn and there’s no reason for them to. When judges make law about whether tort causes of action are viable as between certain plaintiffs and certain defendants, or when they make laws like “delayed discovery” as a tolling on a statute of limitations, people should care, but don’t. When judges make law about criminal procedure, like what a police officer has to do when arresting someone or when the officer can search a suspect’s vehicle, people used to care, but do not seem to care any longer.
“What about education?” skeptical Readers ask. School prayer? Teaching evolution? Or teaching creationism (whether or not under the guise of “intelligent design”)? Bussing? Yes, people got upset about those things. In the 1970’s and 1980’s. That’s yesterday’s news.
No, people only get mad about judges “making ” law these days when the judicially-created law involves sex. What a state government can do to prevent or persuade a woman from getting an abortion; what kind of person can marry what other kind of person; consensual sexual intercourse between people of the same sex — these are the only sorts of legal issues that courts handle which people get really upset about. They don’t want judges “making” laws dealing with sex and issues that relate to sex in some way.
Aside from sex, I don’t think anyone has lost any substantial amount of sleep over judicially-created laws for a generation.
