This Report asks whether American courts that decide constitutional cases, and ultimately the Justices of the United States Supreme Court, may be characterized as legislators, and in particular, as "positive" legislators. After defining the terms, the report reviews the Supreme Court's practice of constitutional lawmaking and considers academic and political reactions to that practice. The Report concludes with an account of challenges that the Court has encountered in crafting remedies fit to fulfill the promise of its constitutional rulings.
Kay, Richard and Claus, Laurence P., "Constitutional Courts as "Positive Legislators" in the United States" (2010). Faculty Articles and Papers. 519.