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Do Judges Make Law?

Updated on February 23, 2015
lawdoctorlee profile image

Ms.Treadwell is a licensed attorney and the author of "How Do Hurricane Katrina's Winds Blow: Racism in 21st Century New Orleans."

The Constitutional Convention

Source

We all know that the rule of law governs nearly every aspect of our lives, for example:

  • driving a vehicle
  • marriage, family, and divorce
  • employment
  • crime and safety
  • and, yes, the air we breathe.

While knowing how the law applies to us is critical, it is imperative to understand how laws are made. When we get the question “who makes the law,” we often answer quickly “Congress” or “the legislative branch of government.” What we often forget is that each of the three branches of government has the power to create law.

Pursuant to Article I of the Constitution of the United States there is Congress, at the federal level, with enumerated powers to draft and implement federal statutes. At the state level, we have state legislatures, which create statutes for respective residents of the state. We then understand that we are subject to both federal law and state law.

Article II of the Constitution of the United States provides for an executive, the president, who has his own set of powers. Some legal analysts, including judges, believe that there is an implied authority in the presidency to create law. The president of the United States has the authority to write and issue executive orders (as do state governors), some by inference, some by explicit authority by Congress, some by judicial interpretation.

Since our federal government has greatly expanded in recent decades, most significantly with federal agencies, it can be said that we live in an “administrative nation,” essentially, with a fourth branch of government. Federal agencies make their own regulations, wherein Congress has transferred authority for the federal agency to do so.

Now, what about the judiciary branch? Do judges make law? The answer is "yes." We can argue all day about the whether there should be judicial restraint (that is that judges should not make law), but the fact of the matter is that judges have the authority to do so, at least for more than 200 years.

Chief Justice John Marshall

The fourth Chief Justice of the Supreme Court of the United States.  During his 34-year term on the Court, he delivered more than 1,000 decisions and penned more than 500 opinions.
The fourth Chief Justice of the Supreme Court of the United States. During his 34-year term on the Court, he delivered more than 1,000 decisions and penned more than 500 opinions. | Source

When judges make decisions, it is known as case law.

We have statutes, administrative law, and case law. Case law (also known as common law) is created by the court system; and while we generally know the purpose of the judiciary is to interpret law, the Supreme Court of the United States took the opportunity during the early years of American government to assert its authority and establish the judiciary as an equal branch of government. It is known as judicial review.

Judicial review is the “power of courts to review decisions of another department, or level of government.” (Black’s Law Dictionary). It was established in the case Marbury v. Madison in 1803. Chief Justice Marshall wrote the opinion of the Court, standing for the position that judicial review is a necessary inference from the fact of a written Constitution (Constitutional Law, 5th Ed.):

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So, if a law be in opposition to the Constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty. (Bold and italics added for emphasis.).

For one moment, we can return to the issue of whether there is a need for more judicial restraint. Theoretically, the legislative branch of government can write new law or revise old law, which would override the judiciary opinion. For example, Congress could have convened following the decision in Marbury v. Madison to change the Constitution and revise the organization of the Supreme Court or limit the Court's authority explicitly. But since its signing in 1787, and despite numerous amendments, the Constitution of the United States remains unchanged regarding the authority of the Court as follows in Article III:


"Sec. 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Sec. 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state; --between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

Sec. 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted."

Make no mistake, case law is the law. When attorneys take cases to court, they will argue case law that is favorable to their client's position.

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Examples of Case Law

Case law is the total body of cases creating a body of jurisprudence (the law) on a particular subject distinct from statutes and other sources of law. These cases interpret statutes, regulations, and constitutional provisions. (Black’s Law Dictionary). New interpretations of the law are known as "precedents."

Landmark cases provide such examples:

  • Brown v. Board of Education of Topeka struck down the “separate but equal” laws of a multitude of states as unconstitutional
  • Roe v. Wade and Griswold v. Connecticut established rights to privacy, which were not explicitly provided for in the U.S. Constitution.

Just because the judiciary has made a decision does not necessarily mean that case law is binding for all time. The Court, in its infinite wisdom, has been known to overturn itself; however, in the interest of maintaining consistency (known as stare decisis), it rarely will do so. The case of Brown v. Board of Education of Topeka is a prime example of the Supreme Court overturning itself. Brown reversed the decision of Plessy v. Ferguson, which allowed for racial segregation (Jim Crow laws) to continue in America.

All branches of American government make law.

Each branch of government makes laws; and so, through the courts, do judges with their decisions and opinions in legal cases presented to them. Even dissenting opinions in a case can be used to create precedent in following cases. Consider if this was not possible. If Associate Justice John Marshall Harlan had not dissented in the Plessy case, there would be less room to argue that racial segregation had no place in American life. The importance of judicial opinion is that it allows for the representation of changing values and mores to redirect the law.

In the courtroom, it is not enough to know what the statute says, it is critical for an attorney to demonstrate how the statutes have been interpreted in other courts, particularly, higher courts with greater authority. When the attorney presents relevant and persuasive case law, it can be the key to winning the legal battle.

Special thanks to Kay70flow for inspiring this hub.

Works Cited

Black, Henry Campbell. Black's Law Dictionary, Abridged 7th Ed. West Publishing. 1991.

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

Constitution of the United States (1787).

Griswold v. Connecticut, 381 U.S 479 (1965).

Marbury v. Madison, 5 U.S. 137 (1803).

Plessy v. Ferguson, 163 U.S. 537 (1896).

Roe v. Wade, 410 U.S. 113 (1973).

Stone, Geoffrey R., Louis Michael Seidman, et al. Constitutional Law, 5th Ed. Aspen Publishers. 2005.


By Liza Lugo, J.D.

(c) 2012, Revised 2014. All Rights Reserved.

Ms. Lugo retains exclusive copyright and publishing rights to all of her articles and photos by her located on Hub Pages. Portions of articles or entire content of any of these articles may not be used without the author's express written consent.Persons plagiarizing or using content without authorization may be subject to legal action. The articles by Ms. Lugo regarding legal issues are purely academic in nature and do not constitute legal advice. For advice on legal matters, consult a licensed attorney in your jurisdiction.

Revised edition published on January 2, 2015. Latest corrections and edits made on February 23, 2015.

Permission requests may be submitted to liza@lizalugojd.com

Read the new book by Liza Lugo, J.D. that explains the most important case law in American history.

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    • lawdoctorlee profile image
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      Liza Treadwell Esq aka Liza Lugo JD 2 years ago from New York, NY

      You're welcome, RTalloni. Thanks for reading this hub and for your comments. I agree, it is so important that judges are elected to their positions. So many don't understand the role of judges; in fact, so many don't understand our legal system. I feel it's important for all to know, which is why I write about it.

      Hope you have a wonderful day.

    • RTalloni profile image

      RTalloni 2 years ago from the short journey

      Thanks much for the work that went into this hub that provides a look at how important it is to understand the role of judges within our legal system. I am reminded of how important it is that we work to make sure they are elected and not appointed to their positions. Looking forward to catching up and keeping up with your posts.

    • lawdoctorlee profile image
      Author

      Liza Treadwell Esq aka Liza Lugo JD 2 years ago from New York, NY

      Mel Carriere, thank you so much for reading this hub and taking the time to comment. You are right. Whether it is at the Supreme Court level or the lowest level of courts, the courts' opinions often create a stir (especially from the "losing" side). It's not hard to understand why because clear-cut issues, at least with regard to civil lawsuits, are rarely argued in court. It's the grey areas that wind up in front of the judges.

      Indeed the judicial system provides a vital function in democracy.

      Hoping the new year brings you wonderful things. Blessings to you & yours.

    • Mel Carriere profile image

      Mel Carriere 2 years ago from San Diego California

      Very interesting explanation. I think the Supreme Court has always made controversial decisions that have been denounced as unconstitutional by the losing side. Yet people whose politics lean toward the left denounce Supreme Court decisions that favor the right, and vise versa, as if this were some new, unprecedented power that the courts had usurped. The courts provide a vital function in protecting our individual liberties even if they sometimes do things that we disagree with. Great hub!

    • ahorseback profile image

      ahorseback 2 years ago

      Hey Lawdoctorlee ! And I wish you the same as you deserve

      ! Thank you !

    • lawdoctorlee profile image
      Author

      Liza Treadwell Esq aka Liza Lugo JD 2 years ago from New York, NY

      ahorseback (Ed), once again, I so appreciate that you took time out of your day to read my work and for commenting. I'm always honored when I hear from readers. Glad you liked this one as well. I agree that judges with a "right-" or "left-agenda" are among my least favorite. Judges should interpret the law according to how it is intended to be applied and then determining whether that law is in line with the spirit of the Constitution. They should be non-partisan in order to maintain the integrity of justice.

      Wishing you nothing but the best in 2015.

    • ahorseback profile image

      ahorseback 2 years ago

      Great hub , Americans need to study more about the law and the legal system . I believe that the leniency of how judges Interpret each individual law is too liberally influenced today . Judges with agenda 's , right or left , are the least of my favorites . A judge sitting on the bench today seems far more likely to follow popular trends towards their interpretations and so how they judge a case . Not good ! Very interesting discussion hub !........Ed

    • lawdoctorlee profile image
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      Liza Treadwell Esq aka Liza Lugo JD 2 years ago from New York, NY

      Iris, thank you so much for reading this hub and for taking the time to comment. I so appreciate it. I agree also that the legal system is set up fairly well, after all, nothing is perfect. I also agree with you that we need to address the inconsistent application of the law, yes, particularly with race issues. It's why I write what I write.

      Wishing you an amazing 2015! Blessings to you & yours.

    • Iris Draak profile image

      Cristen Iris 2 years ago from Boise, Idaho

      Excellent synopsis. I agree with Bill. I think the legal system in this country is set up fairly well. Although we must address the inconsistent application of the law, particularly as it applies to racism.

    • lawdoctorlee profile image
      Author

      Liza Treadwell Esq aka Liza Lugo JD 2 years ago from New York, NY

      Sandra, thank you for your continued support, time, and comments. I'm so grateful. Yes, if only we could stop the extremists! Enjoy the rest of your day.

    • lawdoctorlee profile image
      Author

      Liza Treadwell Esq aka Liza Lugo JD 2 years ago from New York, NY

      Thanks Bill! I agree with you; I also have a problem with the influence of special interest groups. I know the Founding Fathers' warnings of financial influence of which you speak! It was a recurrent theme by drafters of the Constitution and presidents along the way. I think you just gave me inspiration for another hub! Always wishing you the best life has to offer.

    • Sandra Eastman profile image

      Sandra Joy Eastman 2 years ago from Robbinsdale MN

      Excellent article and well said. Now if only we could stop extremists from over stepping their place in determining laws it would make for a better and fairer system.

    • lawdoctorlee profile image
      Author

      Liza Treadwell Esq aka Liza Lugo JD 2 years ago from New York, NY

      Thanks, Jodah, I so appreciate your support of my work and your comments. Glad you found this one interesting and that you learned something from it. I'm sure you'll stay on the "right side." Always wishing you nothing but the best.

    • billybuc profile image

      Bill Holland 2 years ago from Olympia, WA

      This takes me back to the days of teaching Political Science. Very nice summary. Honestly, Liza, I have no problem with the way the law-making system is set up. My problem will always be with the extreme influence of special interest groups who pour billions of dollars into the system. I don't remember which one of the founding fathers said it, but we were warned of financial influence back in the 1780s and we have yet to learn the lesson.

    • Jodah profile image

      John Hansen 2 years ago from Queensland Australia

      Very interesting hub Liza. I know much more about the setting of laws than I did before. Hopefully I can stay on the right side of it.

    • lawdoctorlee profile image
      Author

      Liza Treadwell Esq aka Liza Lugo JD 2 years ago from New York, NY

      You're so welcome, Frank. Once again, I appreciate you taking time to read my work and share your comments.

      My goal in writing about the law on HP is so that everyday folks can understand it. It's too important. Hopefully, I'm achieving that.

      Blessings to you and yours always.

    • Frank Atanacio profile image

      Frank Atanacio 2 years ago from Shelton

      thank you for sharing the law or the rule of law with us so that we might understand it a little better... this crash course pre-law 101 made for interesting reading... bless you