THE BLOG
05/09/2016 12:22 pm ET Updated May 10, 2017

Do Judges Make or Find the Law?

Why won't the Republican Senate even consider Obama's nominee, Merrick Garland, for a confirmation vote, up or down? The answer comes down to raw politics.

Chief Justice Charles Evans Hughes said that, "We are under a Constitution, but the Constitution is what the Judges say it is." His statement goes to the heart of why appointments to the Supreme Court have assumed assume such partisan political significance.

Face it, the Supreme Court is not a court of law; it is a political Court. Although Justices fall all over themselves saying that they function as Delphic oracles telling us what the law is, the Court, when it comes to constitutional or other ideological issues, is a partisan body. The Justices' attitudes towards such hot-button issues as reproductive rights, affirmative action, the role of religion in public life, and capital punishment involve policy-making choices, not logical interpretation of the Constitution. Most Americans would agree with me. According to a mid-April 2012 Gallup Poll, 50 percent of Americans believed that the Court would decide the Obamacare case based on "their partisan political views," while only 40 per cent believed the decision would be made "on the basis of the law." In a March 2012 Bloomberg News poll, 75 percent believed that the Court's decision on Obamacare would be more "influenced" by "politics" than "based solely on legal merits."

Partisanship on the Court is nothing new, although it has intensified in recent years with a 5-4 conservative majority at the time of Justice Scalia's death, and an uptick in polarizing 5-4 and 6-3 decisions decided on ideological grounds. In 1937, Franklin Delano Roosevelt became so mad at the Supreme Court for striking down his New Deal legislation, much of it like Obamacare poorly drafted and poorly defended, that he tried to "pack" the Court, and proposed legislation enabling the President to appoint an additional Justice, up to a maximum of six, for every member of the Court over the age of 70.

FDR presented his justifications to the American people in his ninth Fireside Chat on March 9 in which he spoke of a "quiet crisis." He said that the Court "has been acting not as a judicial body, but as a policy-making body." The Supreme Court had held the Railroad Retirement Act unconstitutional by a 5-4 vote; it held the Agricultural Adjustment Act unconstitutional by a 6-3 vote; it held the New York Minimum Wage Law unconstitutional by a 6-3 vote. Accordingly, he said, "We want a Supreme Court which will do justice under the Constitution -- not over it. In our Courts we want a government of laws and not of men." Then came the coda, "We have therefore, reached the point as a Nation where we must take action to save the Constitution from the Court and the Court from itself."

Fortunately, the Court packing bill was dead on arrival. Although the Democrats controlled both houses of Congress, the court-packing plan fell flat on its face. Roosevelt's own vice president, John Nance Garner, opposed the measure, as did many other Democrats. Portly Harvard Law School Professor (later Dean) Erwin Griswold weighed in against the plan, testifying that there was no historical precedent for enlarging the Court on the grounds advanced by Roosevelt.

The Senate Judiciary Committee termed Roosevelt's plan "a needless, futile and utterly dangerous abandonment of constitutional principle... without precedent or justification." Chief Justice Rehnquist said of the Roosevelt 1937 Court-packing contretemps, [T]he Constitution provides for ultimate responsibility of the Court to the political branches of government. [Yet] it was the United States Senate -- a political body if there ever was one--who stepped in and saved the independence of the judiciary...

Are judges supposed to make the law or "discover" the law? England's William Blackstone, the great 18th century commentator on the common law, thought that the judge discovers the law, and does not make it. He and other judges after him in America viewed the law as like a vast unmapped continent, the mountains and seas of which are yet to be explored. Oliver Wendell Holmes, however, disagreed, ridiculing the Blackstonian view as seeing law as some "brooding omnipresence in the sky." Holmes' philosophy was that the personal element in a great judge really matters; that law is more like a skyscraper under construction with judges in their own way and legislators in own their way gradually building new beams, making new laws to meet the needs of an evolving society. Human beings, Holmes thought, build the law. "The life of the law," he famously said, "has not been logic: it has been experience." He wrote, "The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, and even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed." He argued that ethical values, as opposed to deductive reasoning, drive the law. As he later expressed it, "General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise."

Who was right, Roosevelt or Holmes? Both sides are right, said the iconic Harvard Law Professor Zechariah Chafee. "[T]he judges make the law out of what they discover, and that law is the will of the Justices trying to do that which is right."

Unfortunately, the flap in the Senate over the Garland nomination will only lead to a more politicized judiciary. In the run-up to the presidential election, the candidates will be asked what kind of Justices they would appoint, and counting the Scalia vacancy, the next President will possibly appoint four new Justices, transforming the direction of the Court for decades. The ideological divide between the Justices who might be appointed by a President Hillary Clinton and a President Donald Trump could not be more dramatic.

Whether the Supreme Court is a partisan court, a political court, or a court of law, it is the enduring bulwark of liberty in our system. If a populist majority elects a President, who seeks to deport American citizens because their parents or grandparents are here illegally, or advocates "punishment" for a woman or her doctor over an abortion or wants to exclude immigrants because of their religion, we have to count on principled Justices of the Supreme Court, independently of the election returns, and based on law, not on popular sentiment, to restrain him and declare what the law is.

The seasoned constitutional lawyer, Theodore Olson, has urged the Senate leadership of both parties to agree to disagree, and evaluate candidates solely on their background, experience and proven record for excellence. Several years before Scalia's death, Chief Justice Roberts made the same plea. The Senate, however, is unlikely to listen until after the election. As political humorist Finley Peter Dunne famously quipped, "No matter whether the Constitution follows the flag . . . the Supreme Court follows the election returns."

James D. Zirin, a lawyer, is the author of the book, Supremely Partisan--How Raw Politics Tips the Scales in the United States Supreme Court, scheduled for publication this summer.