I am no general suck up to the Va. Supreme Court. Too often their decisions favor big business and the government and defendants in general to suit my preference. But one thing the Va. Supreme Court does very well is defer to the Virginia Legislature. Virginia’s Supreme Court gets it. It is not the place for the Courts to make law, it is the Court’s job to interpret and apply the law. Many decisions I have seen in my years as a Virginia lawyer where the Justices themselves disagreed with the law, but they nevertheless refused to invalidate the law and instead pointed out that it was up to the General Assembly to change the law. Here’s one example that I turned up from a decision in 1947:
…” Professor Wigmore in his excellent work on Evidence, 3rd Ed., Vol. VIII, page 221, et seq., vigorously attacks the privileges granted by the common law rule and the reasons upon which the rule is based. We are not, however, called upon to pass upon the reasons for the rule, or the wisdom of the law. A lack of good reason may be ground for the legislature to change the law; but we must construe the law as it is.” [Meade v. Commonwealth, 186 Va. 775 Emphasis added.]
In stark contrast, our U.S. Supreme Court Justices figuratively gallop about on their white horses, seeking to do good. Justices were not appointed to enact their own particular versions of “good” into our Constitution and our federal laws. That is the job of our elected representatives. The U.S. Justices too often usurp the job of the Legislature by effectively re-writing the duly enacted laws and the Constitution by substituting what those documents actually say with what they want them to say. Kudos to Virginia’s Supreme Court.