Making the Law

By Kenneth J. Bartschi

“Although we interpret it, we do not make the law . . . .” State v. Santiago, 318 Conn. 1, 393 (2015) (Espinosa, J., dissenting). This statement, oft repeated by politicians irritated with a court decision and occasionally by judges in dissent, makes me crazy because it is simply not true.

In the Anglo-American legal tradition judges make law every day and have done so for centuries. Perhaps you have heard of the common law? Any first year law student can recite the four elements of negligence – duty, breach, causation, and harm. Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 373 (2015). But you will not find negligence defined in this way in Connecticut General Statutes because like many torts, negligence is a common-law cause of action created by the courts. Indeed, contracts, torts, and properly law is still largely delineated by the common law, augmented by statutory law. Judges made, and still make, the common law. See, e.g., Mueller v. Tepler, 312 Conn. 631 (2014) (recognizing a common-law loss of consortium claim for same-sex couples who would have been married at the time of injury but for their unconstitutional exclusion from marriage).

Judges also make law when construe statutes. For example, when parties bring an action to dissolve their marriage, the court has statutory authority to assign part or all of the “estate” of one spouse to other. Conn. Gen. Stat. § 46b-81. The dissolution statutes do not define “property” for purposes of equitable distribution (indeed, the statute does not contain the word “property”). Accordingly, where it was not obvious, the courts have had to define, on a case-by-case basis, whether the asset at issue is distributable property. Thus, we know that unvested stock options may be property subject to distribution, Bornemann v. Bornemann, 245 Conn. 508 (1999), while a medical degree is not, Lopiano v. Lopiano, 24 Conn. 356 (1998). While the court ostensibly was “interpreting” § 46b-81, the court in reality was filling a gap using common-law principles and precedent to delineate the contours of marital assets. In other words, the court is making law with its decisions.

The same principle applies to construing constitutions. Where a constitution uses precise language, there is no room for interpretation. Thus, judges in Connecticut must retire at age 70, Conn. Const. Art. Fifth, § 6, and the president of the United States must be at least 35 years old, U.S. Const. Art. II, § 1. But much of both the Connecticut and federal constitutions is set out in broad language, such as the right to be free from “unreasonable searches and seizures” or “cruel and unusual punishment.” U.S. Const. Amends. IV & VIII. See also Conn. Const. Art. First, § 8 (“No person shall . . . be deprived of life, liberty or property without due process of law . . .”); id. § 20 “No person shall be denied the equal protection of the law . . .”).

As my partner Wesley Horton recently put it: “Equal protection and due process . . . are broad terms meant to set out a philosophy of government rather than a cookbook with specific instructions.” Wesley W. Horton, Rethinking the Geisler Test, Horton, Shields & Knox, P.C. Appellate Blog (July 21, 2015), available at (last visited Aug. 25, 2015). Consequently, just as courts address gaps in statutes in interpretation through common-law judging, courts apply the same approach to construing constitutions. In other words, the court makes law when it construes the constitution.

What Justice Espinosa and other jurists who use “legislating from the bench” rhetoric are really getting at is the notion of judicial restraint. When judges make law, they need to do so on the basis of precedent and logic. When construing a statute or constitutional provision, courts should cleave to the intent expressed in the language at issue wherever possible. Courts have developed various tests to adhere to the principle of restraint or at least provide a reasoned approach to resolving a case of first impression. See, e.g., Jarmie v. Troncole, 306 Conn. 578 (2012) (setting out test for recognizing new causes of action); State v. Geisler, 222 Conn.672 (1992) (establishing framework for adjudicating state constitutional claims). Most of the time, this process works just fine.

It is certainly fair, however, to criticize the court when it strays from established principles in deciding a matter. It is also reasonable to disagree about how to interpret the precedent, language at issue, and policy in any given case. But please, if you disagree with a decision, don’t accuse the court of “making law” as if it’s some nefarious act designed to undermine democracy. It’s what courts do every day and have done for centuries.