Do judges have a policy-making role in the American system of government?

What should be the role of judges in the American system of government? Should judges be policymakers or should they confine themselves to deciding cases by applying the policies, expressed in law, made by others? The question does not seem difficult. The concept of the lawmaking judge is oxymoronic: Lawmaking power is precisely what defines the legislative function and distinguishes it from the judicial.(1) Further, lawmaking by judges is obviously inconsistent with the most basic principles of the Constitution: separation of powers, republican self-government, and federalism.

Policymaking by courts is inconsistent with the system of federalism established by the Constitution. The Constitution's explicit assignment of the legislative function to Congress(2) and the judicial power,(3) defined as power to decide a specified class of cases,(4) to courts precludes any contention that lawmaking can be a function of federal judges. The Constitution's creation of a republican form of government and guarantee that state governments will remain republican are also inconsistent with lawmaking by unelected federal judges. In our federal system, a central government of limited specified powers coexists with the States, which retain power over most issues of social policy.(5) Policymaking by the Supreme Court in Washington, D.C., therefore, is the antithesis not only of representative self-government, but also of decentralized government.

The paradox is that although judicial policymaking is both oxymoronic and unconstitutional, it is one of the most prominent and distinguishing features of our present system of government. Asking whether judges have a policy-making role in the American system of government is like asking whether gravity has a role in the solar system. One could argue that the Supreme Court has been our most important institution of government over the past third of a century, deciding basic issues of domestic social policy.(6) Justice Brennan, the Court's most influential member during that period, has undoubtedly been the nation's most important political leader, even though the vast majority of Americans would probably not recognize his name. Indeed, the scope and significance of judicial policymaking continue to expand.

Today, American judges decide questions literally of life and death, such as abortion(7) and capital punishment,(8) and basic morality, such as pornography,(9) nude dancing,(10) and public displays of vulgarity.(11) Judges determine whether provision may be made for mentioning the name...