Topic: Interpretation vs. Making Law
Senator: Hatch
Date: SEPTEMBER 13, 2005
Contents
HATCH: You've explained that it's not the duty of the judiciary to make the law or to execute it, but to interpret it.
Now, I'm not naive. Sometimes interpretation is more of an art than a science. There are those who would label interpretation absolutely anything a judge might do or, two, the text of a statute or the Constitution.
But it seems to me there comes a point where a judge is using his own creativity and purpose and crosses the line between interpreting a text written by somebody else and in a sense creating something new.
Now, that troubles me since, as I said earlier, I believe in the separation of powers. If a judge crosses the line between interpreting and making the law, he has crossed the line supporting his legitimate authority from the legislative branch's authority.
Now, to me that's a very serious matter if we believe, as America's founders, did that the separation of powers -- not just in theory or in textbook but in practice in the actual functioning of government -- is the linchpin of limited government and liberty.
How do you distinguish between these two roles of interpreting and making law? And can you assure the Senate and the American people that you will stay on your side of this line?
ROBERTS: I will certainly make every effort to do so, Senator.
I appreciate the point that in some cases the question of whether you're interpreting the law or making the law -- that that line is hard to draw in some cases.
I would say not in most cases. I think in most cases, most judges know what it means to interpret the law and can recognize when they're going too far into an area of making law.
But certainly there are harder cases. And someone like Justice Harlan always used to explain that when you get to those hard cases you do need to focus again on the question of legitimacy and make sure that this is the question that you the judge are supposed to be deciding rather than someone else.
You go to a case like the Lochner case, you can read that opinion today and it's quite clear that they're not interpreting the law, they're making the law. The judgment is right there.
They say, "We don't think it's too much for a baker to work" -- whatever it was -- "13 hours as day. We think the legislature made a mistake in saying they should regulate this for their health. We don't think it hurts their health at all."
That's right there in the opinion. You can look at that and see that they are substituting their judgment on a policy matter for what the legislature had said.
So the fact that it's difficult to draw the line doesn't relieve a judge of an obligation to draw the line.
There are those more academic theorists who say, "It's a question of degree. And since it's just a question of degree you shouldn't try to draw the line because it's hard sometimes to interpret the law without making the law. We should throw our hands up and say, 'Well, judges make the law,' and proceed from that."
That has not been my experience either as a judge or an advocate. My experience has been, in most cases you can see where the line is and you do know when judges are exceeding their authority and making the law rather than interpreting it.
And careful judges are always vigilant to make sure that they're adhering to their proper function and not going into the legislative area.
Contents
Prev
Next
Last
