I used to be revising a paper on the connection between fairness and property, and I had event to lookup this traditional line from Justice Scalia:
I’m not so naive (nor do I feel our forebears have been) as to be unaware that judges in an actual sense “make” legislation. However they make it as judges make it, which is to say as if they have been “discovering” it—discerning what the legislation is, moderately than decreeing what it’s at present modified to, or what it should tomorrow be.
James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 549 (1991) (Scalia, J., concurring within the judgment).
Two justices joined Justice Scalia’s opinion. With out trying, are you able to guess which of them?
