Kathryn – Perhaps Professor Stras should have said “interpreting the law” rather than “making the law.” Either way, I think the broader point of his op-ed should be well taken. Moreover, knowing Stras reasonably well (I just saw him yesterday in Minneapolis, which is how I learned of his op-ed), I am certain that he did not mean that the Court is creating the Constitution. Rather, as a practical matter, the decisions of the Supreme Court “make” the law insofar as the decisions set the rules that lower courts, the other branches, states, and the people must follow. I would also note, that outside of the constitutional context, it is certainly fair to say that courts “make” law when they apply and expand upon traditional common law rules, canons of construction, and the like. In any event, I would argue that he is correct that increasing focus on ideology in the confirmation process has created the incentive to nominate mediocrities. We got lucky with Chief Justice Roberts–he was a supremely qualified and most excellent nominee–but it appears that sort of luck has run out.
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