missy wrote:
Ah - no. A judge is supposed to enforce and uphold the law (or in the case of the SCOTUS, determine if a law is Constitutional).
You are mistaken, Missy. Judges fill in the details in every law. Congress may pas a law which says "blue dogs are illegal", but this then raises the inportant question, "what exactly is a blue dog"? It's a judge or judges who will decide.
One decision becomes
precedent, which may or may not influence subsequent judicial decisions depending on the level or prestige of the court. A set of precedents beome
caselaw, which is likely to be introduced in court. Judges will need excellent grounds for issuing a decision which varies substantially from caselaw. Finally, a ruling at the Supreme court level becomes
binding upon all inferior courts--a brand new, judge made law.
This is the process assigned to the court everywhere; not merely in under the US constitution, although its there as well. That *is* the rule of law.
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Similarly, courts fill large gaps in law as well as small. The constitution demands equal treatment under the law. The terms aren't defined, deliberately so. It's courts which define and redefine those terms, providing the flexibility which permits legal codes to survive for centuries.
In this day, does "equal treatment" mean that gays should have the right to marry? If the answer is yes, the supreme court has the power to strike down all contrary law, caselaw and earlier precendent. That's their job.
