This Report asks whether American courts that decide constitutional cases, and ultimately the Justices of the U.S. Supreme Court, may be characterized as legislators, and in particular, as “positive” legislators. After defining the terms, the report reviews the Supreme Court's practice of constitutional lawmaking and considers academic and political reactions to that practice. The Report concludes with an account of challenges that the Court has encountered in crafting remedies fit to fulfill the promise of its constitutional rulings.

LEGISLATORS AND POSITIVE LEGISLATORS

The topic of this Report engages two analytically distinct ideas – legislation and “positive legislation.” By legislation, we mean any action that adds a rule to a given system of law. Historically, American jurisprudence has displayed an ambivalent attitude to the idea that judges legislate in this sense. Judicial lawmaking is, of course, an entirely familiar feature of common law adjudication, but until the latter part of the nineteenth century, this proposition was widely considered heretical. The orthodox view was that what might look like judicially created rules were, in fact, deductions from a preexisting body of common law principles. By the middle of the twentieth century, however, this idea had been fully debunked, and there was common agreement that “judges do and must legislate,” although they can “do so only interstitially; they are confined from molar to molecular motions.” Critically, moreover, such judge-made law was universally acknowledged to be subject to correction and revision by elected legislatures.