This is a legal fiction. Both abortion and affirmative action were legislated from the bench. That's how they came to be. It's a classic thing. Having come to the conclusion that some thing should be law, the composition of the bench determines whether sufficient justification can be found. Then these decisions have the weight of law.
It is a defacto Politburo - a long lived legislative body of ultimate authority that has a rolling composition not determined by direct electoral results.
We can point to the legal fiction that the judiciary is not the legislature all we want but it walks like a duck and quacks like a duck.
> the composition of the bench determines whether sufficient justification can be found.
You're under the mistaken impression that justifications are a prerequisite. Any court can find justification for any ruling in whatever way they see fit. Yes, lower judges have been remove for questionable decisions. SCOTUS is above that, as a lifetime appointment. Sometimes rulings come with no justification at all. SCOTUS has been trying to explain itself via these public "opinions", but is not required to do so.
They kind of do. Federal judges have a great deal of latitude in what they are allowed to accomplish with a ruling. They have the power to effectively change the text of a law to mean what the judge says it should mean (granted, it must also pass appeal).
It has been a problem for decades now that Congress will pass laws that aren't well thought out, then leave it to the judiciary to iron out the specifics. It's only recently that members of the judiciary began pushing back and ruling on the text of the law and saying the legislators should "fix" the obvious problems with the law.
The term for this is colloquially, "legislating from the bench."
Liberal SCOTUS opinions talk a lot about morality and societal harm, rarely about the legality of the subject at hand. It is Congress' job to deal with morality and harm, not the judicial branch.
The Jackson dissent opener is a great example of this:
> Gulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens. They were created in the distant past, but have indisputably been passed down to the present day through the genera- tions. Every moment these gaps persist is a moment in which this great country falls short of actualizing one of its foundational principles—the “self-evident” truth that all of us are created equal.
Apparently anything that doesn’t further a final state of equality of outcome is inherently racist and it’s the governments job to make that happen.
Conservatives also care deeply about morality and society, but their opinions often hide behind whatever legal interpretation gives them the policy outcome they desire.
Thomas is a textualist when the text is favorable. If it's not, suddenly historical context and the founder's intent becomes crucial.
> They interpreted existing laws for a particular case, gave their judgement, and applied the existing law.
This is not how it works in common law jurisdictions. Common law judges can and do make law. This is called case law (or common law), in contrast to statute law that is enacted by the legislature. That goes beyond just interpreting statute law but also making new laws where they do not exist. Common law offences, for example, are crimes declared as such by judges even when there is no statute criminalising that conduct. Most of the existing contract law has been made by judges rather than by legislators.
This is just a dispute of semantics over what the word "law" means. The fact remains that the United States government has been designed from the start to have legislative bodies that pass statutes, and judicial bodies which do not pass statutes. If judicial bodies effectively pass or amend statutes by exercising too much control, then we have a fundamental breakdown occurring with respect to the design of the system.
You're implying that the judicial branch legislated in this case.
They did no such thing.
They interpreted existing laws for a particular case, gave their judgement, and applied the existing law.
Indeed, legislating via the judicial branch is a bad idea, and so it's a good thing that they do not and are not able to.