Do Judges Make Law? The Debate Over Judicial Power in America

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When a court decides a case, its ruling ordinarily governs later similar cases. That is the sense in which judges are said to make law. The real debate is whether a given ruling enforces the law or chooses policy, and the answer turns on the legal reasons the court gives.

Same-sex marriage shows the stakes. In its 2015 ruling in Obergefell v. Hodges, the Supreme Court required states to license same-sex marriages. The majority said fundamental rights do not depend on elections. Chief Justice Roberts’s dissent countered that, under the Constitution, judges have power “to say what the law is, not what it should be.”

What changes when a court decides a case

Article I of the Constitution assigns the legislative powers it grants to Congress. Article III assigns federal judicial power to the Supreme Court and lower courts established by Congress. These are different jobs, but deciding a case can still establish a rule that matters far beyond the people who brought it.

A precedent is an earlier decision involving similar facts and law that ordinarily guides a later similar case. Federal courts of appeals decisions bind lower courts within the same circuit, the group of federal trial courts whose cases that court of appeals reviews.

On many subjects, a state’s law is found only in the decisions of its courts and operates with the same force as a statute. That is common law, developed through deciding disputes rather than through a legislative vote.

Erie Railroad Co. v. Tompkins shows how much such a rule can matter. Tompkins was walking a path alongside the Erie Railroad’s tracks when an open door on a passing train struck him, severing his left arm. Pennsylvania court decisions held that a person walking along the tracks was a trespasser to whom the railroad owed almost no duty of care. To avoid that rule, Tompkins brought his suit in a federal trial court, which instead applied general law, using the more common rule that a railroad did owe a duty of care to a person on a footpath along its tracks. The jury awarded him $30,000.

On April 25, 1938, the Supreme Court ruled in favor of the railroad: Pennsylvania law, rather than general law, should have been applied. In common-law cases, the Court said, the law to be applied is the law of the state, and there is no federal general common law. A state court’s role in developing state law should therefore not be confused with a federal judge having a free-standing power to invent national rules.

Why courts can set aside a law

Article VI makes the Constitution, federal laws made under it and treaties the supreme law of the land, binding state judges despite conflicting state law. An elected legislature’s authority is itself limited by the higher law that creates the government.

William Marbury sued James Madison in the Supreme Court, seeking an order compelling Madison, the secretary of state, to deliver Marbury’s judicial commission. Marbury’s commission was the signed and sealed document for his appointment as a justice of the peace in the District of Columbia. In Marbury v. Madison, decided in 1803, Chief Justice Marshall reasoned that the Constitution controls any legislative act that conflicts with it, and that interpreting the law is the duty of the courts. Otherwise, constitutional limits would cease to be limits whenever the legislature crossed them.

Marbury nevertheless could not obtain the requested order because his suit fell outside the Supreme Court’s constitutional original jurisdiction, which Congress could not enlarge. Original jurisdiction means hearing a case at its beginning rather than reviewing another court’s decision. So the Court held unconstitutional the part of the Judiciary Act, a law passed by Congress, that let it hear suits like Marbury’s in the first instance.

Article III protects federal judges’ tenure during good behavior and bars reducing their compensation while they remain in office. That insulation is part of the democratic tension: federal judges can enforce a constitutional limit without facing voters the way legislators do.

Even so, a political disagreement does not, by itself, give every objector a case for a federal judge to decide. Standing is a person’s legal eligibility to bring a case in federal court. Federal standing requires a concrete, personal injury that is actual or imminent and fairly traceable to the defendant’s challenged conduct. A favorable court decision must also be likely to remedy that injury rather than merely offer speculative relief.

Activism and restraint ask different questions

Jane S. Schacter is a professor at Stanford Law School. Law scholar Schacter describes several meanings of judicial activism, including overturning government action, reversing precedent and choosing one interpretive method over another. Schacter also observes that critics of different stripes use the accusation to express disagreement with a ruling. Activism is therefore not an inherently liberal position, and the label alone does not establish a judge’s politics.

Restraint, a judge’s deference to lawmakers or to earlier courts, is no simpler a label. A judge could defer to a legislature while rejecting an earlier court decision, or preserve precedent while striking down a new law. Calling either judge simply restrained would hide the choice of what to restrain.

In his 1893 essay on judicial review, Harvard law professor James Bradley Thayer argued that courts should reject legislation only for a constitutional mistake so clear that it was beyond rational question. His argument leaves elected lawmakers room to choose among reasonable constitutional interpretations, even when a judge would choose differently. Thayer also argued that political responsibility must remain with the people and legislatures, because courts cannot be their chief protection against harmful government.

The Supreme Court’s Obergefell v. Hodges majority argued that an injured person can demand constitutional protection even when the public disagrees or the legislature refuses to act. The hard part is establishing that the claimed protection is actually a constitutional right rather than an appealing policy.

Chief Justice Roberts’s Obergefell dissent acknowledged the appeal of same-sex marriage as policy but rejected the argument that the Constitution required courts to mandate it. Rights enforcement and democratic deference each address a real danger: an unprotected right on one side, an unelected policy choice on the other.

How judges choose an interpretation

Textualism focuses on the plain meaning of a legal document’s words. It is a way to read the enacted text; restraint concerns how much room to leave lawmakers or earlier courts.

Originalists generally agree that the Constitution’s text had a public meaning at the time of the Founding that has not changed over time. For many years, some prominent scholars argued for looking to original intent: what the people who drafted, proposed, adopted or ratified the Constitution wanted to convey.

Antonin Scalia served as an associate justice of the Supreme Court. In his 1989 essay Originalism: The Lesser Evil, Antonin Scalia argued that judges risk confusing their own preferences with law when they appeal to fundamental social values. Originalism has practical defects too, he wrote, but they are less likely to make that danger worse.

Law professor David Strauss’s 2010 book The Living Constitution makes a different argument: constitutional law can adapt through accumulated precedents and traditions, with change constrained by what came before. It locates a source of restraint in developed practice, where Scalia’s argument locates it in original meaning.

The Congressional Research Service identifies text, original meaning, precedent, practical consequences, structure and historical practices among the methods used to interpret the Constitution. Stare decisis, the practice of adhering to earlier decisions, supports predictability, consistent legal development and reliance, but is not an absolute command. Kimble v. Marvel Entertainment concerned royalties on sales of a patented Spider-Man toy after its patent expired. In Kimble v. Marvel Entertainment, the Court explained that respecting precedent can mean adhering to decisions believed wrong. Overturning a precedent requires a special justification beyond believing that the earlier decision was wrong.

What the famous cases actually show

Brown: a constitutional ruling and a separate remedy

On May 17, 1954, the Supreme Court’s Brown v. Board of Education decision held that racial segregation in state public schools violated the Fourteenth Amendment’s guarantee of equal protection. The Court found the Amendment’s history inconclusive on the school question and considered public education’s developed place in American life. The decision illustrates the interpretive dispute: how to apply a broad constitutional guarantee when historical evidence does not resolve the specific practice.

On May 31, 1955, a second decision, known as Brown II, instructed the states to begin desegregation plans “with all deliberate speed,” and resistance to the Court’s decisions persisted. Declaring a legal rule and bringing institutions into compliance with it are different achievements.

Obergefell: whose decision should marriage be?

The plaintiff was James Obergefell, and his partner was John Arthur. The man the case is named for, Obergefell, traveled from Ohio to Maryland, where same-sex marriage was legal, to marry his partner, who had ALS, a progressive disease with no known cure. Three months later his partner died, and Ohio law did not permit Obergefell to be listed as the surviving spouse on the death certificate. On June 26, 2015, the Supreme Court held that states must license same-sex marriages and recognize valid same-sex marriages performed in other states.

The majority treated the question as one of constitutional right; Roberts’s dissent treated it as a policy choice that belonged to voters and legislators.

Bostock: competing claims to follow the text

Clayton County, Georgia, fired Gerald Bostock for what it called conduct “unbecoming” a county employee, shortly after he began participating in a gay recreational softball league. He sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964, in which Congress outlawed discrimination in the workplace based on race, color, religion, sex or national origin. The Supreme Court decided Bostock v. Clayton County on June 15, 2020, in a majority opinion written by Justice Gorsuch. The majority held that firing an employee for being gay or transgender necessarily involves sex in the employer’s decision, which Title VII of the Civil Rights Act forbids. Its reasoning: an employer who does that fires a person for traits or actions it would not have questioned in members of a different sex.

Justice Alito’s dissent called the decision legislation and emphasized that sexual orientation and gender identity were not expressly named among Title VII’s prohibited grounds. A judge can defend a consequential ruling as obedience to legislative text while another sees that same ruling as an unauthorized expansion of it.

Who can change the answer after a ruling

When a ruling interprets a statute, Congress can correct any mistake it sees by changing the law. That is unlike a constitutional case, the Supreme Court said in Kimble v. Marvel Entertainment, and it is why precedent carries extra force when a decision interprets a statute.

Amending the Constitution is a separate process from passing a law. Article V allows Congress to propose amendments with two-thirds of both houses, or a convention to propose them after applications from two-thirds of state legislatures. An amendment must then be ratified by three-fourths of state legislatures or by conventions in three-fourths of the states, through the route Congress selects.

The President nominates Supreme Court judges and appoints them with the Senate’s advice and consent. Elections shape the Supreme Court through the officials who choose its members; voters get no direct vote on an opinion.

President Joseph R. Biden Jr. created the commission by executive order. The Presidential Commission on the Supreme Court of the United States examined Court expansion and term limits in its December 2021 final report. It concluded that Congress has broad authority to modify the Court’s size. On term limits enacted by ordinary law, it described supporters’ argument, drawn from a Supreme Court case called Booth, that Congress can change justices’ duties though it cannot remove them from office or cut their pay. Critics countered that Booth involved lower court judges who had voluntarily taken senior status, retiring from regular active service while continuing to hear cases, and held only that Congress could not reduce their pay. It does not follow, they argued, that Congress can require life-tenured justices to stop participating in the Supreme Court’s decisions. A constitutional amendment would address tenure through changing the governing law itself; a statute would have to survive the constitutional objections the report examines.

The report also examined proposals to limit courts’ power to invalidate legislation, including restricting jurisdiction and requiring larger judicial majorities. The commission was not asked to make recommendations; its report provides a critical appraisal of the arguments in the reform debate.

How to read a decision without a political label

Start with the legal question the majority actually answered, then identify the provision it interpreted and the remedy it ordered. Look for the step that does the work: a meaning assigned to a phrase, a precedent retained or rejected, or a claimed constitutional limit.

The Supreme Court’s syllabus is a summary prepared for readers by the Reporter of Decisions and is not part of the Court’s opinion. Use it to get oriented, then read the majority’s reasoning and the dissent’s strongest objection. Ask whether the disagreement concerns the text, historical meaning, the treatment of precedent or the proper institution to make the decision.

The accusation that judges make law becomes useful only when it identifies what the judges did and why that choice exceeded, or fulfilled, their legal role.