Do Courts Make Laws?

When the Supreme Court announces its decisions and issues its opinions, it is often accused of “legislating from the bench,” or making laws although it is not the legislative branch. Does the Court “make law” when it decides the outcomes of the cases that come before it? The answer depends on the definition of “law” one uses. When the Congress, a state legislature, or some other established law-making body, passes a law, it creates “statutory law.” These are the laws with which people are most familiar, such as laws regulating the speed limit, laws that define criminal behavior, and the laws that establish government programs. Statutory laws, however, are not the only kinds of laws that are “made” and applied in the American political and legal systems.

The most fundamental laws of this nation are the guidelines established by the Constitution. The “constitutional law” of the land includes the Constitution’s descriptions of the relationships between the three branches of the national government, the relationships between the national and state governments, the powers the Constitution grants to the national government, and, most importantly, the limitations it places on governmental action.

The legislative, executive, and judiciary branches are all established and guided by constitutional law. However, the Constitution is vague enough that each branch has frequently found itself in situations where the “right” course of action under constitutional law was unclear. The Framers of the Constitution, recognizing that they could not anticipate every possible circumstance in the new nation’s future, purposely left room for each branch to adapt and interpret their roles under the Constitution to meet the needs and challenges they would face. Most notably, the Congress was given the task of deciding what was “necessary and proper” to “promote the general welfare” and form “a more perfect union.” The necessary product of these decisions has been thousands and thousands of statutory laws.

As the executive branch has implemented the statutory laws passed by the Congress, it has also had to interpret not only its role under the Constitution but also the intentions of the Congress. In many instances the Congress has passed legislation that was purposely vague, leaving the details to executive branch departments and agencies to decide. When bureaucracies determine the details of the enforcement and implementation of a law passed by the Congress, the executive branch also “makes law.” These kinds of laws are called “administrative law.”