Do we really expect the Supreme Court not to make law?

We'll never know if Harriet Miers would have passed the test, but John Roberts evidently did and we can expect the next Bush nominee for the Supreme Court to pass it as well. What test is that? Adherence to "strict construction" of the Constitution.

Or in ordinary words, the view that courts should not "make law." But, of course, if the court hadn't made law in its early years, nobody would be so concerned about who would serve on it today. When John Marshall wrote Madison v. Marbury in 1803, he asserted the right of the Supreme Court to determine constitutionality of federal legislation. This right does not appear anywhere in the Constitution. Logically, it might have been one of the powers of the President, but Marshall succeeded in establishing the Supreme Court's preeminence in such decisions and it has become a settled fact.

This is not to suggest that a more conservative approach to the role of the Supreme Court is not possible. Justices may be slower to overturn precedent and more reluctant to second guess legislation. But to suppose that they will ever stop "making law" is to misread the historic role of the court.