AS the Senate awaits the nomination of a new Supreme Court justice, a frank discussion is needed on the proper role of judges in our constitutional system. For 30 years, conservative commentators have persuaded the public that conservative judges apply the law, whereas liberal judges make up the law. According to Chief Justice John Roberts, his job is just to “call balls and strikes.??? According to Justice Antonin Scalia, conservative jurists merely carry out the “original meaning??? of the framers. These are appealing but wholly disingenuous descriptions of what judges — liberal or conservative — actually do.
Faithfully applying our Constitution’s 18th- and 19th-century text to 21st-century problems requires not only careful attention to the text, fidelity to the framers’ goals and respect for precedent, but also an awareness of the practical realities of the present. Only with such awareness can judges, in a constantly changing society, hope to keep faith with our highest law.
This does not mean judges are free to make up the law as they go along. But it does mean that constitutional law is not a mechanical exercise of just “applying the law.??? Before there can be a serious national dialogue about our Constitution, our laws and the proper role of our judges, that myth must be exposed.
