Refining the Lawmaking Function of the Supreme Court

In this Article, I will address this second type of lawmaking. I want to explore the ways in which the Supreme Court, in its opinions, does and can guide the conduct of lower courts, legislatures, government agencies, government employees, and the public at large. Each of these groups, and others, is likely at times to have some direct need to know what the law is. And to the extent that part of our law is set forth in the opinions of the Supreme Court, this aspect of the craft of lawmaking should not be ignored.

Although it is common in academic discourse and classroom discussions in law schools to emphasize the weaknesses in Supreme Court opinions, this is a luxury not available to the conscientious lower court judge, legislator, head of an executive department, or cop on the beat. The people occupying these roles may not be totally unconcerned with whether the law is right or wrong, but they have a much more direct concern with simply knowing what the law is. When the law that governs them emanates from the Supreme Court, the effectiveness of Supreme Court lawmaking depends on the ability of the Court to perform its role in the process. Consequently, the guidance function of the Court deserves close scrutiny.