The Trouble with Cases

The recent hearings on Judge Sonia Sotomayor's and Solicitor General Elena Kagan's nominations to the Supreme Court vividly exemplify the enthusiastic concurrence between the senators and the nominee that judges make neither law nor policy. Judges decide particular cases between particu­ lar litigants, the questioners and the responders agree, and in doing so they apply laws and policies made by the allegedly more representative legislative, administrative, and executive branches of government. Thus goes the collusive charade played out before each Supreme Court nomination, one designed simultaneously to reassure and mislead the gen­ eral public. Denying the lawand policy-making role of the courts is the standard mantra, and no nominee intelligent enough to find herself in that position would dare acknowledge at the hearing that judges serve, at least in part, as lawmakers and policymakers. Most of us, of course, know better. Courts make law and set policy all the time, an inevitable consequence of the indeterminacy and open-endedness both of the common law and of the vague language in which many con­ stitutional and statutory provisions are drafted. When the Supreme Court