A common characteristic of a liberal democracy is the separation of powers among specified state institutions, each with an identified authority to act in a particular capacity on behalf of the democracy. The basic model is simple: the legislature makes the laws, the executive administers them, and the judiciary resolves disputes arising under them. But beyond those principal allocations, each of these units partakes in the business of the others. A legislature may have the authority to appoint or approve members of the executive or judicial branches; an executive may have the authority to veto legislation or to exercise discretion in enforcing laws; and the judiciary may have the authority to fill gaps in the legislatively created program or to declare action by the state unconstitutional. So what we see when we step back from this model of separated powers is the organic law-making institution that we call the state. It is a democracy to the extent that it is a system designed for the people.
None of these institutions is inherently democratic in the pure sense of the word, but each represents a variety of democratic values. At the core of every liberal democracy is a commitment to a wide range of established and evolving individual rights. The judiciary is the key instrumentality through which the state adheres to this democratic commitment. Without an effective judicial system those rights exist only as abstractions. Undoubtedly, the courts partake in lawmaking as part of this function. Recent examples include the Supreme Court's interpretation of the Second Amendment as protecting an individual's right of self defense and the Due Process Clause as protecting an individual's right to marry the person of his or her own choosing. But those high profile cases aside, the judiciary also plays a lawmaking role in controlling, to a large extent, access to the system of civil justice.
The Supreme Court's docket for the October 2016 Term includes petitions addressing pleading sufficiency, standing, and jurisdiction, all procedural conditions to a civil action that must be satisfied to have access to justice. These are not high-profile cases, but they are supremely important, as they might offer the Court further opportunities to limit access to the federal judiciary through the imposition of technical and mechanical rules that raise the bar of entry, suffocate substance and prevent on-the-merits dispute resolution.
This approach, though, would be in deep tension with the Court's democratic responsibility to oversee a system of justice that permits the law to adjust to the evolving facts of modern life. Law is a means in the hands of the people, and courts are a means in the hands of law and the people for the enforcement of people's rights. Thus law should evolve together with society, and further promote that evolution. Judicial decisionmaking should operate along the same lines. A completely pragmatic approach to judicial decisiomaking, though, one that proceeds on a case-by-case basis disregarding precedent and traditions, would not be desirable, as it would jeopardize the rule of law whose essence is transparency and predictability. But a completely formalistic judicial decisionmaking would not be conducive of democracy and progress either. An optimal judicial decisionmaking would balance formalism (law discovery) and realism (law creation) through a careful "law-making" interaction between legislative and judicial bodies.
Unfortunately, courts are no longer partaking in this institutional dialogue. They feel the pressure of solving disputes, but they end up meeting that pressure by closing the doors to judicial resolution, and that dramatically hurts democracy, as it ends up silencing the individual, the one player in our constitutional scheme most in need of a judicial forum. The collective people have a voice in the election of their representatives, including the President; both Congress and the President have tools to defend their own constitutional prerogatives; and the States have a significant voice in Congress, and particularly so in the Senate. Only the individual is left out of these structural checks and balances. An individual's constitutional voice is heard, if at all, when the individual presents her claim in the system of justice. As the legislature prepares to embark in yet new reforms, and as the Supreme Court prepares to address yet more questions, my hope is that these revisers and interpreters keep in mind that courts are the instrumentalities through which a democracy attempts to function.