Justice Gorsuch’s assertions that the Supreme Court was “writing a rule for the ages” and that his concerns lied mainly with future cases rather than the current Trump immunity proceedings have stirred debate among legal scholars. It is worth clarifying, despite the assertions of Gorsuch, that the Supreme Court’s primary function is to interpret and apply laws, not to craft them.
Legislatures, not courts, are typically the entities tasked with creating broad laws that govern general conduct. Their jobs require the anticipation of potential circumventions or abuses of laws, thus necessitating comprehensive legal drafting. Courts, on the other hand, are generally more focused on a case-specific basis, ruling on the facts immediately before them in the context of existing laws.
Perhaps Gorsuch could benefit from revisiting the teachings of Alexander Bickel, a noted jurist known for his emphasis on the ‘passive virtues’ of judicial decision-making. As explained in the Amazon page for Bickel’s key work, ‘The Least Dangerous Branch’,
Bickel’s contributions to constitutional law highlighted the importance of courts deciding cases on narrower, substance-based grounds where possible. This approach is a stark contrast to the creation of broad, far-reaching rules.
In fact, the concept of precedent-based legal systems (also known as common law) operates under this principle. Judgements apply only to the specific case and circumstances in question. When a similar case arises in the future, the presiding judge will determine if the earlier decision is binding or whether the new case introduces significantly unique circumstances.
For reference, you can visit Scotusblog for some of the comments made by Gorsuch which incited this debate.
Opting to create broad, far-reaching rules as opposed to focusing on individual, context-specific cases can result in potential shortsightedness and unforeseen negative consequences. Courts do not possess the capacity or the mandate to write rules for all conceivable future scenarios – such matters purely fall within the ambit of legislatures. Functioning with an understanding of the facts before them, courts are designed to reach decisions, not to “write for the ages”.
In conclusion, judicial institutions, including the Supreme Court, are not endowed with the powers nor the tools to fabricate a ‘rule for the ages’. Crafting rules that could potentially have far-reaching and lasting impact is not part of their mandate. In fact, it is advised that these institutions stick closely to their capacities and ensure decisions and judgments are based on the facts of each case, rather than speculating about all possible future scenarios. Doing otherwise could lead to unforeseen negative ramifications.