Next justice will interpret the law

That epithet has become little more than a verbal grenade, hurled, too often, simply to impugn any decision with which one disagrees.

While individual justices do occasionally step beyond their assigned role, it is important to recognize that activity per se is not the problem.

For the alternative to the unjustified imposition of a judge's personal values or policy preferences is not no activity, on his or her part. Judges are not to be passive spectators; adjudication is an activity, calling for the exercise of careful, objective judgment.

Appellate courts' responsibility is to police the Constitution. The rhetoric of "activism" notwithstanding, the proper interpretation and application of our law cannot be reduced to a purely mechanical process. If it could, we would be replacing Justice Souter with a computer.

2. Beware the "umpire."

It is a commonplace for some to liken the role of a justice to that of an umpire, who does not make the rules, but simply enforces them. While this analogy captures part of the truth, it is incomplete and consequently, misleading.

In sports, umpires do not have a say in what the rules are. They are given a complete set of rules at the start of each season and charged to call games accordingly.

In the U.S. legal system, by contrast, courts are presented not only with the Constitution (the fundamental rules of the game), but with specific laws made by countless legislatures and by numerous agencies of the executive branch (not to mention the court's own precedent).

The court's responsibility is precisely to determine whether all of these purported laws are compatible with the Constitution, which is our ultimate legal standard.

In other words, its role is to determine whether these are, in fact, valid laws. Unlike the umpire in Fenway Park, justices do have a say in what the laws are. It is not for courts to legislate, to be sure, but nor is it to rubber stamp, to passively acquiesce concerning the Constitutional validity of whatever would-be laws are enacted by those charged to make the law.

Such passivity would be judicial dereliction of duty.

3. Beware the lawmakers.

Finally, the judiciary is only one component of a larger system of interlocking parts. It cannot perform its function as it should if the others are not fulfilling theirs as they should.

Consider some of the laws that courts are called upon to decipher (all of these terms are in actual laws): prohibitions of "unfair" methods of competition, of "predatory" pricing, "predatory" lending, and of a "hostile or offensive work environment"; requirements that manufacturers of certain products provide an "appropriate fair balance" of information about those products; the FCC's ban on "indecency" on the airwaves in service to the "public interest" (which portions of the public? and which of their interests?).

When the laws that judges are handed are written in such subjective, pliable language, is it any wonder that we find fault with some of their rulings?

Legislators and executives, obsessed with the next election, are often so intent on appeasing all constituencies that they deliberately adopt evasive, elastic language, essentially punting tough choices in lawmaking to the courts.

Much of the responsibility for the eventual court rulings that often strike us as judicial overreaching, in other words, actually stems from those who have irresponsibly crafted our laws and left courts in a "damned if they do, damned if they don't" position.

A just legal system demands objectivity in the substance of law as much as in the application of laws.

Much may be wrong in our legal system. The blame hardly lies with courts alone, however.

In coming months, we would do well to reflect not only on how judges should interpret the law, but on how members of the other branches should make the law —- as well as on what kinds of laws we, as voters, ask them to make.

Tara Smith teaches philosophy at the University of Texas at Austin.