What has been the role of the courts in creation of policy?

Is this a homework question?

In the US the courts should have no role . But that is not always the case .

From a Constitutional standpoint, the Courts are not supposed to have ANY role in policy making. Especially not the lower courts. Even the Supreme Court is supposed to only interpret law, not make policy.

However, historically speaking, the courts have had more of a hand in policy-making than the Founding Fathers intended. From the Dread Scott decision to Roe V. Wade to Hamdan v. Rumsfeld, the courts have been a driving force in making law based on "legal precedent" and in making decisions that force administrations to change their plans and policies. The concept is called "legislation from the bench" or "legislation by fiat", and constitutional originalists deplore the activity.

A great book on this topic is "Men In Black: How the Supreme Court is Destroying America" by Mark Levin. I highly recommend it.

Elliot

Hello h:

The Bill of Rights enumerates the rights that Jefferson talks about in the Preamble when he says that each of us is endowed with certain inalienable rights. The framers of the Constitution, however, didn't think that was enough, so they spelled them out clearly and concisely in case there was any confusion. They are the first ten amendments to the Constitution.

It's the job of the congress to make policy. However, they can't make policy that contravenes ANY of those rights. And, it's the job of the courts to determine whether a law violates any of those rights.

There are those in congress on both sides of the aisle, who continually pass laws that violate one or more of your individual rights. They, of course, believe that they're only doing their job of making policy.

So, when the courts say a policy violates the Constitution, instead of calling it what it is, they call it "legislation by fiat". But, it's truly nothing more than the court doing its job.

The court just yesterday ruled that it's illegal to be sentenced for longer periods for the same amount of crack cocaine as that of powdered cocaine. There are those hard line drug warriors out there who'll scream that this is legislation from the bench. It's the court usurping the powers of congress.

But it isn't. It's the court doing its job.

excon

No... I think that Federal mandatory sentencing violated the constitution . Roberts, and Thomas joined in the 7-2 majority so you know that the originalists philosophy went into the decision. It was an activist court in the 1980s that took discretion away from the judges and led to the ' Sentencing Reform Act of 1984'(passed by a bipartisan Congress) .

a direct result of the Scooter sentence commutation.

I would possibly buy into that if the movement towards striking down Fed Mandatory Sentencing was a new development . However the court has "evolved " towards that decision . 2 years ago they made a decision against Fed. Strict guidelines ;well before the Libby case High Court voids 'mandatory' sentencing (http://www.nacdl.org/public.nsf/mediasources/20050113a)