Back in the eighties when I was growing up, few people knew who was on the Supreme Court. Thurgood Marshall was a famous justice because of his work on civil rights prior to his appointment. He was the first Black jurist on the court, and he was a lion.
Many people had heard of Byron Whizzer White, not so much because of his jurisprudence, but because he had once been an All-American football player at the University of Colorado in the 1930s, finishing as a Heisman Trophy runner-up in 1937, and then moving on to a successful career in the NFL before joining the Navy during WWII.
In 1981, soon after he was elected President, Ronald Regan appointed Sandra Day O’Connor as the first female Justice on the Court.
There was never much hand-wringing or shouting about Supreme Court Justice appointments back then. Nobody cared all that much, and we all suspected that the Justices ruled in the best interests of the country.
Things started to change a bit in 1987 when President Reagan nominated Robert Bork to a position on the court and he was rejected as a conservative ideologue by the Democrat-controlled Senate. That was really the first time average Americans took notice of a Supreme Court nomination. The appointment process became politicized in the eyes of the general public. Appointments became an “us” against “them” prospect, and battle lines got drawn.
Slowly the Court was no longer viewed as a neutral apolitical branch of government above the political fray, but rather as an ideological branch wielding power beyond its presumed authority.
By the nineties, we started hearing concerns about judges “legislating from the bench” when they issued decisions that ran afoul of the politics of the day. Suddenly the message started to creep into our understanding that unelected judges were making law, rather than interpreting it.
We started learning about “originalism” and hearing debates about whether the Constitution is a living document or a static document. It was generally pointed out that liberal judges made up the law while conservative judges followed the law.
This was all just messaging from spin doctors and special interests, though.
My experience has been this: in those difficult cases that require exposition by appellate courts, the law is never really clear. Interpretation of ambiguity, and determination of legislative intent becomes vital. Judges use the various tools at their disposal to try to discern what an imprecise or intentionally ambiguous legislature could have meant when it passed a law that requires interpreting.
If the law were clear, it would have been unlikely to have made it to an appellate court in the first place.
When judges issue opinions, I suppose one could always argue that they are making law or legislating from the bench. In reality, what they are called upon to do is discern what legislatures meant.
I may not agree with the politics of those who serve on the bench. But I still generally trust their judgments, and I believe that they use their power to interpret and apply law in ways that are just.
There is a so-called 6 to 3 conservative majority on the Supreme Court today. And our news sources would have us believe that means that conservative principles will now be advanced from the bench at all costs. I am not so sure. I still put my faith in the people and the institutions, and so far that faith has been well-placed.