The same case is read by judges as either protecting rights or inventing them.

Evidence

The contrast in Goodridge v. Department of Public Health (2003) could hardly have been starker. Four justices of the Massachusetts Supreme Judicial Court concluded that the state could not restrict marriage to opposite-sex couples. “The Massachusetts Constitution,” Chief Justice Margaret Marshall wrote, “affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens.” The three dissenting justices saw the case quite differently: “Today the court has transformed its role as protector of rights into the role of creator of rights.” — G. Alan Tarr, Judicial Process and Judicial…, 3341

Categorization

• XREF: Frames the two competing traditions of American legal thought — judicial restraint versus active rights-protection — central to the course.
• DEFINE: Crystallizes the protector-versus-creator of rights distinction that structures debates over judicial policymaking.