The job of a judge is to apply the law as it has been written by the legislature. For the last half-century, that has been the most effective argument mounted by constitutional conservatives against activist courts. The judge is not at liberty to legislate. That is, the judge may not revise the laws, under the guise of clearing up nonexistent ambiguities, or filling in nonexistent gaps, or — if we may be blunt about what activist judges actually do — distorting the law to fit the jurist’s subjective sense of fairness and justice.
In a democracy, what is fair and just is left to the judgment of the legislature — the representatives answerable to the people whose lives are directly affected by the laws the legislature enacts. Legislatures are limited only by the Constitution, not by judicial sensibilities.
These principles have been so energetically touted that lawyers can recite them from memory. More importantly, they resonate with the public — to the point that, at confirmation hearings, even progressive judicial candidates pretend to be bound by the law as written. Indeed, it is the historical achievement of the late, great Justice Antonin Scalia that seventies-style judicial freewheeling is no longer de rigueur. Judges must at least go through the motions of wrestling with the text of statutes and constitutional clauses. If they fail to acknowledge the binding law (even if only as a pretext for trying to circumvent it), higher courts are virtually certain to reverse their rulings.
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