E. Sources of the Law, continued

4. Case Law

Case law is judge-made law. When a judge has decided a case, his decision is rendered into a written judgment. If he wishes to clarify the reasons that he ruled the way he did, he will draft an opinion. If the opinion is published, it might have value as a guide for other judges handling similar cases. (This is the concept of precedent, which we will discuss later.) Collectively, these published opinions are called case law. In our system of government we have three branches, each of which has a single job to do. It is the job of the legislative branch (Congress, on the federal level) to create the laws; it is the job of the executive branch (the president and vice president) to enforce the laws; and it is the job of the judicial branch to interpret the laws. Therefore, it is not the job of the court to make law. How, then, can case law be called judge-made law?

When our government was still quite young, the landmark case of Marbury v. Madison, 5 U.S. 137 (1803), clarified the role of the courts in making law. In Marbury, it was successfully argued that, although it is the role of the legislature to make law, if the role of the judiciary is advisory only, then the notion of separation of powers is a sham, and there is no true purpose for the judicial branch.

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty."

Marbury v. Madison, 5 U.S. 137, 177 (1803)

 In order for the decisions of the judicial branch to mean anything they have to have teeth—in other words, they have to be enforceable. They have to have the effect of law. Lawsuits are often brought because the statutory law needs to be interpreted in light of the given set of facts. In interpreting the statutory law and applying it to a new set of facts, the judge may broaden or reduce the scope of that law. Thus, new law (or a new application of the law) is created. This is case law.

However, there are limitations on the court's ability to create case law by interpretation. If a court goes too far, beyond mere interpretation, the court will be overturned for "impermissibly legislating"—that is, for usurping the role of the legislative branch to make law.

For example, during the 2000 presidential election in Florida, the margin of victory was a very small number of votes. Because of the close result and some possible discrepancies in vote counting, the Secretary of State for Florida requested the Florida Supreme Court to grant her an extension of time for certifying the election results so she could order hand recounts. Although the deadline for certifying the results was established by statute, the Florida Supreme Court did so. That decision was challenged on several points, one of which was that it violated separation of powers as an unconstitutional infringement by the judicial branch on the powers of the legislative branch. In Bush v. Gore, 531 U.S. 98, (2000), the court majority stated the question as follows: "The petition presents the following questions: whether the Florida Supreme Court established new standards for resolving Presidential election contests, thereby violating Art. II, § 1, cl. 2, of the United States Constitution [which reserves to state legislatures the authority to create methods for selecting electors](emphasis added)."  Bush v. Gore, Id., at 103.

In a joint dissent (where they disagree with the majority opinion), Justices Ginsberg and Stevens stated, "disagreement with the Florida court's interpretation of its own State's law does not warrant the conclusion that the justices of that court have legislated." Id. at 136.