Originally Posted by
shanbaum
I was disappointed that she did back away from it - I suspect that she was advised to say what she had to say to get confirmed, just as "balls and strikes" Roberts (who certainly knew better) did.
As you might glean from what I wrote, Congress, and the state legislatures, certainly have the power to pass laws that supersede the common law (with some exceptions, see, e.g., the Seventh Amendment). In Connecticut, for example, there are no common law crimes; they've been explicitly abolished by statute. But most of the common law of torts (personal injury), contracts, and property persist, largely unmodified by statute. And, as noted, statutes are hardly ever sufficiently "complete" to just be applied to all the fact patterns to which they pertain. So, we have both.
Some Congresspersons have apparently discovered that they can evoke indignation among the less-well-informed by railing against "activist" judges. At least some of that is disingenuous, because some of them know better. Ultimately, whether a judge is "making" law or "interpreting" it tends to be determined by whether one agrees with the decision. For example, I found the Citizens United decision to be profoundly innovative (that is, "activist"), bestowing rights on corporations (which are today almost entirely creatures of statute law) that heretofore have belonged only to natural persons. This, from a court that in other contexts, would almost certainly disclaim the concept of "group rights".
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