Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Lawmaking and the Supreme Court

James Skillen


March 16, 1998

Speaking to leaders of the American Medical Association on March 9, Supreme Court Justice Antonin Scalia argued, as he often does, that Congress, not the Supreme Court, is the institution authorized to make law. The Court's responsibility is to interpret the constitutionality of laws made by Congress, not to try to fill in missing gaps in statute law. The Associated Press quoted Scalia, "In my Constitution, if you want the death penalty, pass a statute. If you don't want the death penalty, pass a statute the other way. You want a right to abortion, create it the way most rights are created in a democracy: Pass a law. If you don't want it, pass a law the other way. And if you want a right to [physician-assisted] suicide, the same."

Justice Scalia is correct about the basic design and intention of the federal system. Yet there seems to be something missing from his feel for legal/political history. Amendments to the Constitution have opened the legislative and judicial systems to a wider scope of interpretation by the Supreme Court. Moreover, federal and state governments have become increasingly interconnected in finance, infrastructure, education, health care, and dozens of other ways, making it difficult for Congress and state legislatures to pass laws that address concerns and resolve conflicts as rapidly as they arise.

Much of American law has come about through a gradual, incremental process rooted in the common law tradition. Legislative statutes on subjects such as the death penalty often take shape as a means of consolidating and systematizing changes that have arisen over decades in legislation and judicial proceedings. It is not always clear when Congress or a state legislature ought to pass a new law instead of waiting for the Supreme Court to resolve a conflict in a specific case that will help to clarify the constitutional context in which lawmaking may either proceed or prove to be unnecessary.

Take as an example the ongoing conflicts over public funding of schools. There is nothing in the Constitution about schooling. State and federal laws have been passed over the years to authorize and fund education. Late in the nineteenth century, laws were passed (the Blaine amendments) requiring new states entering the Union to set up educational systems that prohibited public funding of "sectarian" schools. Since that time, the meaning of "sectarian" has changed, the federal government has become more involved in schooling, and a host of inconsistent Court decisions have been handed down on religion and education. There is confusion across the land as to what law on religious freedom in education will meet First Amendment requirements.

In recent years, some states have begun to pass laws offering greater school choice and equality in schooling, but lawmaking typically occurs in a self-censoring mode based on past Supreme Court rulings. What we need now from the Court, therefore, is a ruling to make clear that the First Amendment does not permit religiously directed education to be tagged as sectarian, nor does it sustain the judgment that government-controlled education is, by definition, neutral and non-sectarian. Until the Court makes this clear, lawmaking will be thwarted.

Scalia said that bad statutes make for bad legal results because the system is designed that way. The reverse is also true. Flawed legal decisions (as in the case of the Supreme Court's rulings on education and religion) help perpetuate confused or misguided statutes. When there is a long tradition of poor judicial reasoning, it is difficult for Congress simply to "pass a statute" that can settle the truth of a matter. Scalia is justified in wanting the Court not to create laws, but that is only half the truth.

—James W. Skillen, Executive Director
   Center for Public Justice


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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”