Wait, judges make laws?

Discussion in 'Politics' started by Dickie4:20, May 29, 2009.

  1. #1 Dickie4:20, May 29, 2009
    Last edited by a moderator: May 29, 2009
    There is one thing the right and left agree on, even extreme partisanship transcends this-

    Judges, according to popular belief, are not supposed to make law.

    Obama seems to agree, when he announced Sotomayors nomination to the Supreme Court, he said one of the biggest reasons he chose her was because she has “an understanding that a judge's job is to interpret, not make law.”

    Republicans, of course, claim to fully agree. Yes they've been running with the whole “activist” judges who “make law instead of just interpreting it” line for decades. It is one of their best fundraising tools.

    So there it is, about as bipartisan is they come, judges interpeting law-good, judge making law-bad.

    Too bad all of its nonsense.

    Judges make law? Well of course they do. It part of the job, its what they get paid the big bucks for.

    What you have in this country is a massive failure of civic eductaion.

    Ok ill try to explain, so here goes.

    Yes it is true that only legislatures are supposed to pass statutes, but, statutes have never been anything close to the only source of law in our constitiutional system. Ours is a common legal law system.

    The common law, by its very definition, is judge made by law.

    From wikipedia Common law - Wikipedia, the free encyclopedia

    “Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals (called case law), rather than through legislative statutes or executive action.”

    Wait, that sort of sounds like judges making law, doesnt it?

    Also, this whole judge made common law thing is in the Constitution.

    The Seventh Amendment says, “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . .”

    But theres more.

    Judges "make law" in other ways too. Every single time a court construes a statute or a section of the Constitution, therby clarifying its meaning in a way that changes how it is applied, the court, you guessed it, "makes law".

    The issue really isnt if judges make law because, well, they do. The issue is whether they do so in a restrained way that is respectful of our democratic institutions. And in recent decades, conservative Supreme Court judges, not liberal, have too often failed on that account, when they strike down congressional enactments as unconstitutional.
    The Most Activist Supreme Court in History

    Sotomayor, whatever you think of her, has shown great restrain in her opinions.
    Judge Sotomayor's Appellate Opinions in Civil Cases | SCOTUSblog

    In conclusion, to suggest judge Sotomayor's record implies that she'll be some sort of a wild activist Justice, like many rightwingers are saying, is simply not true.

    Mommy told me not to lie.:p

    So im sure there are many points that you think i am wrong on so let the flaming begin boys!:D

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