Sir, - The purpose of a judge is not to make law, but to interpret it. It is the task of legislators to make law. That is why we elect them.
I was surprised to read Justice Brian Walsh's piece on the late Justice William Brennan of the Supreme Court because it was so very uncritical, and because it missed this all-important distinction between the legislature and the judiciary. In his time on the Supreme Court William Brennan read into the American Constitution things which are simply not there. He also read out of it things which are there. And so he was a member of a Court which plucked out of thin air a right to abortion. He was opposed to the death penalty thinking it unconstitutional, although it is explicitly allowed by the Constitution.
Brennan may well have been morally correct to support abortion and oppose the death penalty, but because the Constitution has nothing to say, either directly or indirectly, about the former, and expressly permits the latter, he stepped quite outside his role as a judge in adopting the positions he did. In the final analysis, for the judiciary to take up the task of the legislature is undemocratic. Judges are not elected. For example, it was up to state legislatures to allow abortion, not Brennan and his colleagues.
The problem with Brennan is that, as a judge, he allowed his conscience to override the Constitution, which is fine if you agree with him, terrible if you don't, but one way or the other is a fundamental breach of democratic practice. - Yours, etc.,
David Quinn,
St John's Wood, Dublin 3.