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Originally Posted by Villages Kahuna

Partisans argue back and forth over whether conservative justices will rule only on the law and liberal justices might "make law" by introducing issues broader than the statutes in making appellate decisions. That will be a never-ending argument.

Many have said that the cases that ultimately make their way to SCOTUS are often the result of poorly-written or inconsistent statutes requiring SCOTUS to make judgements on the intent of legislatures because the laws themselves don't always provide clear and unquestionable guidance to the judiciary. That being the case, I find myself wondering how an appellate court, including SCOTUS, can possibly avoid "making law from the bench"? If the laws themselves are faulty, then making decisions with only partial guidance from written law has to be the result. The precedents or the common law are certainly not the product of legislative action. All the precedents provide are some examples of how other judges adjudicated situations where the written law is unclear. The resultant body of law has little to do with whether a judge is liberal or conservative or a true "constructionist judge" as those who place total reliance on the Constitution demand.

I guess the flip side of my question might be: if laws enacted by legislators were perfect in both language and consistency--that is, the application of the law to any set of circumstances should easily lead to proper adjudication--then what role would there be for any appellate court other than addressing the question of whether the lower court judge properly applied the written law? There would be little need or role for precedents or the common law--only the application of "perfectly written" statutes. There would be little role at all for a second level appellate court like SCOTUS.

But we all now that statutory law is not perfect, nor will it ever be. That being the case, how can an appellate court--any appellate court at any level--avoid "making law from the bench"?