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Antonin Scalia: State judges have the power to “make law”

SCALIA (2002): But in any case, Justice Ginsburg greatly exaggerates the difference between judicial and legislative elections. She asserts that “the rationale underlying unconstrained speech in elections for political office–that representative government depends on the public’s ability to choose agents who will act at its behest–does not carry over to campaigns for the bench.” Post, at 4. This complete separation of the judiciary from the enterprise of “representative government” might have some truth in those countries where judges neither make law themselves nor set aside the laws enacted by the legislature. It is not a true picture of the American system. Not only do state-court judges possess the power to “make” common law, but they have the immense power to shape the States’ constitutions as well. See, e.g., Baker v. State, 170 Vt. 194, 744 A. 2d

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http://www.law.cornell.edu/supct/html/01-521.ZO.html

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