• In our constitutional system, judges are intended to apply laws in specific disputes rather than make or enforce them.
• A recent Utah Supreme Court case illustrates the temptation for courts to make policy in the name of implementing principles of the law, even when they are at odds with the actual text.
• This approach would put courts in the position of making policy decisions intended for other branches of government.

​In its recent abortion decision, the Utah Supreme Court speculated that there might be “principles” not reflected in the text or historical application of the state constitution that allow the court to identify new rights. Understanding the significance and implications of this approach to judging requires some background.

Since the 1980s, the nominations of many of the justices serving on the U.S. Supreme Court have become difficult and contentious spectacles, often bruising or even brutal for the nominees.

At its root, this is the consequence of beliefs about the role of judges. The framers of the U.S. Constitution seem to have had a modest view of the court’s role. Alexander Hamilton said it would be the “least dangerous” branch of government because it can exercise “neither force nor will, but merely judgment.” In other words, it would not make laws nor enforce them, merely apply them in specific disputes.

In some cases, however, justices have interpreted constitutional provisions in broad ways leading to results that look like legislation – setting policies on issues like administrative regulation, abortion, and the role of the states. When the decisions of justices might determine issues like these for the nation, determining who will serve in the court takes on heightened significance – and, not surprisingly, the public and politicians will scrutinize every nominee. Some are looking to ensure the nominee is likely to advance their preferred policies and others to ensure the nominee will not enact policy at all.

This ignores the scrutiny that ought to be applied to the judges’ commitment to the circumscribed role they have in the system of applying established legal principles in cases and scrupulously avoiding going beyond that role into the policymaking realm.

State supreme court justices have a similar role in their sphere. They do important work but usually do not get the same kind of attention as federal judges. Many of these state court judges come to their roles differently than do federal judges (nomination by the president and confirmation by the Senate). Many states elect judges. About 20 states, including Utah, have a system where the governor appoints justices from a list of candidates. Some states, again including Utah, have retention elections to periodically determine whether judges will continue to serve. Where the governor appoints judges, they typically also must receive a legislative confirmation, though these proceedings are usually less dramatic than those for their federal counterparts.

These differences, though, should not obscure important similarities among all judges in our constitutional system. They have a critical role in protecting the integrity of the laws enacted by the people through their constitutions and through officials and others whom these documents give authority to make policy. Exercising this function correctly truly matters.

A recent Utah Supreme Court decision illustrates this. The decision arises out of a specific feature of the Utah Constitution with no federal analog. The state constitution, like the federal, grants lawmaking power to the legislature. Utah, however, also allows citizens to directly propose and enact legislation through a voter initiative. In 2018, voters approved legislation to direct how the boundaries of legislative districts would be created. The Utah Legislature, however, subsequently passed a bill taking a different approach.

This led to a lawsuit from proponents of the voter initiative raising novel questions. While it is common in the legislative process for elected representatives to amend and repeal prior laws as circumstances and public opinion change, the proponents of the initiative argued that their law required different treatment because of another provision of the Utah Constitution that ensures citizens can alter or reform the law. Though the constitution does not specify how they can do that other than the procedures set out in the rest of the constitution (such as amending the constitution, enacting initiatives, and voting for representatives who have legislative power), they argued that the right to reform the law created a previously unspecified requirement that the Utah Legislature cannot make changes inconsistent with the purpose of the initiative.

In July, the Utah Supreme Court issued an opinion accepting that argument. The leadership of the Utah Legislature has expressed strong disagreement.

The risk of the approach that Utah’s highest court seems to have taken in this case is that it places the justices’ views of what the state constitution should mean above the plain meaning of what the language in the state constitution actually says. That move represents a significant step toward justices stepping into the role of policymakers rather than stewards of the integrity of the law.

For instance, at what point does legislative reform of a law enacted by ballot initiative go too far and become interference inconsistent with the purpose of that initiative? What legal language best advances the intent of voters in a ballot initiative? How long does the protection against legislative interference last – is it indefinite, or does it become moot at some point when enough time has lapsed that most Utah voters are new enough to have never voted on a ballot initiative?

These are public policy decisions about how laws are made and how they can be reformed. Due to the inherently vague and unmeasurable standard just established by the Utah Supreme Court, Utahns will be forced to turn to the courts via new lawsuits to decide what these policies have to be to pass constitutional muster.

In short, the Utah Supreme Court’s ruling seems to create a new category of law different from any other in that it is not subject to repeal or significant amendment – an outcome which the plain meaning of the relevant language of the state constitution never articulates or envisions.

There is no need for this type of intervention when the constitution already clearly allows voters to amend the document and to vote for representatives who agree with the voters’ perspective on how an initiative should apply.

The Utah Supreme Court decision has not resolved the dispute – lower courts will have to address the underlying arguments made by both parties. But the court did break new ground, potentially opening the door to a more expansive approach to state constitutional interpretation that may draw the court into a policymaking role it is not intended to play (nor designed to play well).

Citizens and policymakers would be wise to pay attention to the important work state courts do, giving their decisions the kind of attention given to federal court decisions and promoting a careful allegiance by all branches of government to the roles they are given by state constitutions.