State's High Court Justices Do Make Law

Abstract:     
This Op-ed article challenges the notion that judges should "enforce the law, not make the law." In a common-law jurisdiction, appellate judges have the authority, and indeed the duty, to "make law." Judging involves more than enforcing the will of the legislature. The vast majority of the law that governs us is the common law, and that's a good thing. Legislators are good at passing laws but poor at updating or repealing them as conditions change. They're more interested in planting seeds than cultivating. Judges, particularly at the highest levels, make law continuously as they tend the garden of the common law, advancing or retarding its growth. The public needs to know more about candidates for judicial office than whether they will strictly interpret legislation. They need to ask in what direction will candidates take our state's common law.

Keywords: common law, judges making law, strict construction, appellate courts

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