Judicial lawmaking has steadily grown in the United States in recent decades (McCloskey, 2016). Legislators and administrators are often willing to let judges take the heat for controversial actions, such as allowing or disallowing abortion or ordering busing to desegregate schools. Similarly, it is often politically expedient to allow courts to handle such sensitive jobs as reapportioning legislatures, regulating employment practices, supervising land use and development or urban planning, and managing school systems. Judges also seem more willing than in the past to think that the courts should address various social issues. As a result of all these currents, the judiciary in recent years has assumed a powerful role in our society. As Henry J. Abraham (1996:21) once exclaimed: “It is simply a fact of life that in the United States all social and political issues sooner or later seem to become judicial!”
During the past few decades, courts altered laws requiring a period of instate residence as a condition of eligibility for welfare; laid down elaborate standards for food handling, hospital operations, inmate employment, and education; and ordered some prisons closed. Courts have established comprehensive programs of care and treatment for the mentally ill who are confined in hospitals. They have ordered the equalization of school expenditures on teachers’ salaries, decided that bilingual education must be provided for Mexican American children, ruled for and ruled against same-sex marriage, and eliminated the requirement of a high-school diploma for a firefighter’s job. Courts have enjoined the construction of roads and bridges on environmental grounds and suspended and then reinstituted performance requirements for automobile tires and air bags.
In some now classic, broad-ranging and often-cited examples such as Brown v. Board of Education (347 U.S. 483 ), the judiciary set a precedent in establishing new policies in interracial relations with its decisions forbidding official segregation in public schools with dramatic long-ranging consequences (Gold, 2005). The judiciary also established a new set of laws for processing criminal cases, requiring among other matters that:
- • indigents be given attorneys at public expense in all but minor cases (Gideon v. Wainwright, 372 U.S. 355 );
- • defendants must be warned that whatever they say to the police may be used against them and that they will be permitted attorneys during police interrogation if they request them (Miranda v. Arizona, 384 U.S. 436 );
- • juveniles must be given some of the same rights as adult offenders in hearings that may lead to their imprisonment (In re Gault, 387 U.S. 1 ).
Judicial activism is not without criticism (Dow, 2009; Lindquist and Cross, 2009).
There are questions about the policy-making role of judges in the American system of governments. The role of judges is to apply the law, and the policy-making activities carried out by the U.S. Supreme Court in interpreting the Constitution in view of social changes are considered an impermissible expansion of the powers granted to the judicial branch. The increase in judicial activism, it is argued, created a legislative body that is not accountable to the American people. Challenging these critics, proponents of judicial activism say it is needed to address serious social problems that the executive and legislative branches of government too often ignore or even create through their own rulemaking and other actions.
This controversy aside, three types ofjudicial lawmaking occur: lawmaking by precedents, lawmaking by interpretation of statutes, and lawmaking by interpretation of constitutions. We now examine these three types separately.