Do not legislate or should not legislate?
Polycarp has put a finger on one of the oldest jurisprudential debates going. And it is not a topic for GQ. There are many who would argue that courts legislate all the time. The debate is about:
a. whether it is possible for them not to legislate
b. whether it is a good idea for them to legislate; and
c. what they ought to do if they cannot legislate and the existing legislature-made law provides no clear answer.
And recall, too, that some of the earliest 14th Amendment due process cases involved the Court striking down social welfare legislation, not imposing it.