I was revising a paper on the relationship between equity and property, and I had occasion to look up this classic line from Justice Scalia:
I am not so naive (nor do I think our forebears were) as to be unaware that judges in a real sense “make” law. But they make it as judges make it, which is to say as though they were “finding” it—discerning what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be.
James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 549 (1991) (Scalia, J., concurring in the judgment).
Two justices joined Justice Scalia’s opinion. Without looking, can you guess which ones?
