Constitutional Conscience: The Moral Dimension of Judicial Decision

By H. Jefferson Powell | Go to book overview

5 Making It Up as We Go Along

In James B. Beam Distilling Co. v. Georgia, the Supreme Court rejected the propriety of employing “selective prospectivity” in civil litigation: when in a civil case the Court announces a new rule of law and applies the new rule in that case, the Court concluded that the judiciary is obliged to apply the new rule to the parties in other pending civil actions as well.1 Justice Antonin Scalia explained that in his view the employment of selective prospectivity amounts to an unconstitutional judicial exercise of the power to make law. He then continued in a rather curious vein.

I am not so naive (nor do I think our forebears were) as
to be unaware that judges in a real sense “make” law. But
they make it as judges make it, which is to say as though they
were “finding” it—discerning what the law is, rather than
decreeing what it is today changed to, or what it will tomor-
row
be.2

Justice Byron R. White was not amused. While he agreed with the decision to abandon selective prospectivity in civil cases, he saw no merit in Scalia's distinction: since judges in a real sense do make law, White thought it bizarre, perhaps even offensive, to pretend otherwise, and Scalia's remarks amounted to the suggestion that “judges (in an unreal sense, I suppose) should never concede that they do [make law] and must claim that they do no more than discover it, hence suggesting that there are citizens who are naive enough to believe them. … I am quite unpersuaded by this line of reasoning.” As Justice Sandra Day O'Connor put it, “Of course, we 'make' law as we go along.”3

-103-

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Constitutional Conscience: The Moral Dimension of Judicial Decision
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Preface ix
  • Introduction 1
  • 1: The Rule of Five 16
  • 2: Playing the Game 38
  • 3: A Question of Degree 56
  • 4: Men and Women of Goodwill 80
  • 5: Making It Up as We Go along 103
  • Conclusion: To Govern Ourselves in a Certain Manner 117
  • Notes 123
  • Index 145
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