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I think that there is another important point to be made in this discussion, which is that no statute or regulation can possibly be written in a way that covers all eventualities, that can set forth every combination and permutation to which it applies., or that is guaranteed to pass Constitutional muster. No legislature or agency can accomplish this, simply as a practical matter. And even if they could, no one, legislator, attorney, or private citizen would ever be able to keep track of all of it. Codes, for example, the Bankruptcy Code, attempt to do this, and are still strikingly unsuccessful. We need judges with training in legislative interpretation and intent and Constitutional principles to read between the lines where needed. Legislators and regulatory agencies should certainly not be above the Constitution, state or federal. And without a judiciary, our legal system, state and federal, would fall under its own weight.
Courts in general do not "make law." When precedent is set by lower courts, then affirmed by higher (appellate) courts, it is a sort of "made law." However, epollock is correct in asserting that the legislative body is the proper source of making laws.
The function of the judicial branch of government in the United States is to serve as a check and balance against the legislative and executive branches. Appellate courts exist to review decisions of lower courts, providing a check and balance within the judicial branch.
I agree with brettd's explanation of the role of appellate courts in America; however, in practice, these courts have become more political and empowered to create rather than interpret laws. On topics such as gay marriage and other kinds of "hot-button" social issues, these courts have gotten much bolder in becoming creators of law based on popular opinion or other such non-legal, non-Constitutional criterion.
I absolute agree about the system of checks and balances provided by the wise group of men who established our United States Constitution. If the appellate courts were involved in making laws this system would be toppled. Imagine it like an American Idol audition. If the contestants were allowed to judge, there would be no discretion with regard to who was selected. Each contestant would be biased toward himself or herself. As would the people who created laws if they were then asked to rule on the laws.
I think the writers of our Constitution were very careful to ensure that there were checks and balances in place to protect our citizens. One of those is that the people who make the laws are not the ones who enforce or interpret them.
Given that judges are not supposed to run on party lines and are elected for 8 year terms, I think it would be interesting, this idea of laws being created in the Appellate Court. In the sense that their job is not one of representation of a constituency, I actually wonder if better laws would be written if done from the judicial rather than the legislative branch. One reason we have the extensive court system we do in this country is due to the complexity and ever-changing nature of the law.
I am not advocating for Appellate Courts to begin "writing" law (outside of the interpretation and control they already have). However, I am suggesting that it might have been a more effective system in the first place.
I think #3 serves as an excellent summary of Appellate court and their function. Their key role is not to "make laws" as your question seems to suggest it could be, but to interpret them, shaping the system of law in the States for future court decisions. Therefore appellate courts work in tandem with law-making bodies to ensure that this is a fair and reasonable process - both work together but have very different and separate functions.
Appellate courts serve a very important function. Most people tend to think of the Supreme Court as where the laws are interpreted, and rulings handed down, without realizing that the vast majority of cases and the even greater majority of laws never see the inside of the Supreme Court. In that manner, appellate courts have a much greater role in interpreting the laws, and therefore contributing to the mass of legal opinions and precedents that we base many of our future rulings on.
The Constitution is quite clear about the legislature, with Presidential and Judicial oversight, being the ones who make the laws. Appellate courts and others simply interpret what the law means and whether it is constitutional or not. They also serve as an important check against lower court rulings that may have been flawed, and individual judges who have strayed from the legal path. They attempt to insure that we have the most accurate and just rulings possible at lower levels.
We often hear people accuse or complain that "activist" judges legislate from the bench, but in my experience, the accusation is only made when someone disagrees with a ruling, usually associated with some hot button social issue. This is why we have an independent judiciary, so they are not subject to the whims of popular opinion.
This depends on what you mean by "making laws."
If you are talking about the actual process of legislation, I do not think that courts should be involved. These are people whose strength is their legal education. On the federal level, they are not elected. They are not good representatives of the people and should not be involved in actively creating legislation.
If you are asking if courts should have a role in making law through their decisions, then they have to have one -- they cannot do otherwise. There is no way that courts can avoid making law when they make decisions. Each decision that they make creates, in essence a new law because it changes how the law is interpreted. There is no way that courts can rule in a case without affecting the meaning of a law.
Though it has been codified, the vast wealth of civil law in the United States derives from the common law which is essentially judge made law. Going back in history to the earliest days of Norman kings, common law has been laid down like sedimentation, case by case, to the body of law we have today. Neither the times nor the practice has changed.
No they should not. That should be left to the legislative body such as the Congress or state legislature. It is the appellant's court decision to interpret whether the lower court's process has been followed by either affirming the lower court's decision or by sending it back to the lower court for more deliberation.
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