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Susan Estrich: There’s No Hiding That Judges Make Laws

There's a reason we want people with judgment and experience to serve on the highest court

Don’t tell anyone: This is the season when lawyers left and right cross our fingers behind our backs and solemnly swear that judges don’t make law. Conservatives insist they adhere to original intent. Liberals insist they do no more than apply the commands of a living Constitution. Everyone recognizes that life experience matters, but no one wants to admit how that could be so, since judges don’t make law.

Susan Estrich
Susan Estrich

Except, of course, that they do. Every first-year student shaking his or her head about how hard it is has figured that one out. Come expecting to be taught “the law,” which you will then know and dispense? Not. For every argument, there is a counterargument. One court goes this way; another goes the opposite way. That’s how every section of the casebook is organized. It takes about two months for students to figure out that judges make law, and the next two and a half years to figure out how and why to make the best case for your version of it.

But don’t tell anyone that around Supreme Court confirmation time. The current nominee is going to spend at least a few hours of her time before the Senate Judiciary Committee explaining away her comment at Duke a few years ago that the appeals court (as opposed to the trial court) is the place where policy gets made. Of course, that’s true: District courts try cases; appeals courts write opinions about the issues of law raised by those cases. Saying that you do more of the “policy” (read: legal interpretation) at the appellate level than at the trial level is stating the very obvious.

Of course, no one will say that.

If you have any doubt that it’s true, however, consider the very current and important question of when warrantless wiretapping should be allowed for national security reasons, and whether warrants are required for conversations with foreign nationals suspected of terrorism ties, and if warrants are required, under what standards.

Now, consider the provision of the Constitution in which you will find the answers, the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

If you do a little research or have a good memory for U.S. history, you might remember that the colonists were very much opposed to the general warrants issued under the All Writs Act, which allowed the representatives of the hated English tax collectors to search anywhere they wanted for goods subject to customs. The Fourth Amendment requires that warrants state with particularity what the official is looking for, and that there be probable cause for their issuance, and that unreasonable searches and seizures of people and their houses and possessions aren’t allowed.

About wiretapping, of course, the founders didn’t say anything, telephones not having been invented. The history of eavesdropping was invoked when the court was called upon to determine whether the Fourth Amendment protected a guy talking on a pay phone. But I think you would be hard-pressed, from the right or left, to explain how your stand on warrantless national security wiretapping derives directly from the words I’ve quoted above.

I’m not taking away from the brilliance of those words, the courage it took to write them and fight for them, or the enduring principles of limited government power and protection of individual privacy that they embody. It’s just that it takes judges — judges you may like, judges I may like, judges that those on the left and right may unite to support, as I hope will happen here — to apply those enduring principles to technology our founders couldn’t have dreamed of, in a world facing challenges that couldn’t even be described in their terms.

You can call what they do when they’re doing that whatever you want — call it a banana, as the recession was called under Jimmy Carter — but it is, in fact, the reason you want people of judgment and experience on the highest court.

— Best-selling author Susan Estrich is the Robert Kingsley Professor of Law and Political Science at the USC Law Center and was campaign manager for 1988 Democratic presidential nominee Michael Dukakis. Click here to contact her.

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