Recent years have seen a resurgence of the view that the role of the federal courts is to declare what the law is, not what the law should be. Scholars and judges, including a majority of the current U.S. Supreme Court justices, have expressed this view that the law is fixed at its creation and the function of courts is to declare its meaning. But this view is inaccurate. Descriptively, federal courts often say what the law should be. Judges fashion common law, inject their views into interpretations, and issue opinions that do not merely describe the law but have independent legal authority. Moreover, various legal doctrines – such as Chevron deference and rational basis review – operate on the assumption that the law is not fixed but can be changed by courts and others. The saying is also normatively inaccurate. Federal courts often should make law. For example, the primary role assigned to the Supreme Court is to settle the meaning of unclear law, and often that settlement depends on evaluations of what the law should be rather than merely what it “is.” Persisting with the fiction that the role of the courts is “to say what the law is” – instead of actually acknowledging the lawmaking role of the judiciary – undermines judiciary legitimacy, encumbers the judicial lawmaking process, and unduly shifts accountability to others for judicial decisions.
© 2023 Brigham Young University Law Review
F. Andrew Hessick,
Saying What the Law Should Be,
48 BYU L. Rev.
Available at: https://digitalcommons.law.byu.edu/lawreview/vol48/iss3/6