Significance of Sotomayor’s “Court is Where Policy is Made”: Checks and Balances
I posted yesterday a brief intro to Obama’s recent nominee to the Supreme Court, Sonia Sotomayor.
Sotomayor spoke at Duke University Law School in 2005, saying “the court of appeals is where policy is made.” Here is the 30-second video clip:
‘The court of appeals is where policy is made. And I know—I know this is on tape and I should never say that, ’cause we don’t “make law,” I know. Okay, I know.’
(Notice how she dismissively laughs at her own words.)
Why is this so important? Why does Sotomayor know that she should never say such a thing?
Upon its founding, the United States government was deliberately split into three separate “branches,” or wings of government: the Legislative branch, the Executive, and the Judicial. The reason for this is to create a “separation of powers,” where no single institution of the government has too much control over all elements of governing. It’s a protection measure, for the governed—you and me.
—The Legislative branch is to provide laws,
—The Executive branch is to enforce the laws,
—The Judicial branch is to apply the laws.
This provided a system of “checks and balances,” so that no branch became too powerful and could be “judge, jury, and executioner” all in one.
How does this apply to Sonia Sotomayor?
A judge’s role, as part of the judicial branch of government, is to apply the law as legislated—not to create new law. Policy is made by the Congress in the legislative branch, not the court of appeals in the judicial. And any shift to do otherwise would be an overstepping of the boundaries clearly outlined in the separation of powers in the Constitution.
And here is Sotomayor, emphatically proclaiming that “the court of appeals is where policy is made.” Sotomayor immediately acknowledges the radicalness of her comment, and half-heartedly tries to pay lip-service to the idea that she isn’t supposed to think such a thing.
Activist judges are a plague to the democratic system. When a policy is made, it’s because that’s the way people want the policy to be. When there are rogue judges that apply and interpret laws in their own ways, they single-handedly act as a trump-card against the entire populace. It is completely contrary to the entire system.
And that, my friends, is Sonia Sotomayor—and very proudly so.
(And in case you didn’t see my previously posted introduction to Sotomayor, she’s also a racist, to boot.)
My name is Aaron Rathburn. I am a senior in philosophy at Calvin College, and formerly studied at Trinity School of Theology (Wales, UK). I am a husband, and father of two. This site is a collection of musings on theology, culture, and more. 
“A judge’s role, as part of the judicial branch of government, is to apply the law as legislated—not to create new law.”
I’m afraid it’s not that simple. Although Congress passes laws all the time, they cannot envision every situation, and often they are poorly drafted. Many cases in front of courts deal with situations that fall into such grey zones. Courts cannot just abandon their responsibility to decide such cases. They must turn to precedent, if any exists. Often that precedent is of questionable relevance. Although in a rhetorical sense they are “applying” the law, what they are in fact doing is creating new law in order to address the case at hand. This is the essence of the common law system we inherited from England – a court makes law, which is of either binding or persuasive authority on a subsequent court, unless the legislature overrules the court (either explicitly or through clarification of the law). Then the court reviews that law, effectively creating new law, and the cycle begins anew.
The problem is that what Sotomayor is advocating goes far beyond “clarifying” poorly drafted legislation. She is downright saying “the appeals court is where policy is made,” outright—period.
Of course judges have to interpret things that are in shades of gray. But their intended purpose is to apply the legislation as *indented* by the drafters, not to come up with a whole new application that was not originally intended.
Legislative intent is often difficult, if not impossible, to discern on any given piece of legislation. (Some observers even dispute whether legislative intent is a valid consideration or a fictional concept.) Even if a legislative history is available, it may not be instructive in resolving an unforseen issue.
In such situations, a court may have no choice but to fashion what it deems an appropriate solution to the problem. Toward this end, courts throughout American history have invoked what is generally called “public policy” – court-made doctrine as to how to approach certain problems in the absence of other firm guidance. (For example, it is against “public policy” to permit fraudulent or collusive insurance settlements. It is against “public policy” for a person to encumber his property in such a way where he can enjoy it but his creditors cannot. I could quote a thousand more, but you get the idea.) Public policy is shaped in large part by moral, ethical, political and practical considerations – this is where empathy and experience play a large role.
Although district courts can and often do create new precedent (or “policy” in a somewhat different sense, if you will), generally they deal with applying law and establishing facts at trial. Virtually all significant disputed points of law go up to the circuit courts. It therefore only stands to reason that circuit courts will fashion the more important legal precedent. That was what Judge Sotomayor was referring to, and there is simply nothing controversial about it.
Again, everything you’re saying is true in a *general* sense. But also again, you are omitting the most important key: “location, location, location.” I.e., context. When you look at the *context* of Sotomayor’s comment, it is extremely obvious exactly what she is getting at—and she herself bears witness to it. She immediately backpedals over her comments and tries to gloss over them. Why? Because she knows the statement “there is simply nothing controversial about it” (as you put it) is completely wrong.
Context, context, context. She herself testifies to the fact that she is saying something she isn’t supposed to be saying, in this *context*. Watch the look on her face and her body language as she idly spins her inkpen in circles on the table—it’s a complete joke to her.
Since you don’t specifically say so, perhaps we should clarify for the purposes of discussion: what exactly do you think she IS getting at with her comments? You say it is obvious, but I don’t see it.
Clearly Sotomayor is aware of a judges role as defined in Aaron’s post. That is the role of clarifying law or judging if the law is compatible with the constitution. However, through her response in the video she is showing her willingness to ignore this. Judges can become policy makers when they no longer become embodiments of blind justice. They may ignore intent of a law (even if it is obvious, which it often is) if the law does not fit in with their political leanings. Sotomayor’s attitude is that she is willing to overstep the bounds of her position and act as politician.
I’m afraid we’re simply in unavoidable disagreement over this issue. I simply don’t get the impression either of you get from seeing Sotomayor’s remarks, nor do her opinions suggest some sort of radical narcissistic streak. I see a judge who is admitting the important and inherent role of appellate courts making law and policy in our common law system, while cowed by a conservative-dominated political climate which maintains the fiction that judges do not – and should not – make law. (One must turn to the Napoleonic legal system in continental Europe to find such a principle.)
I imagine that if one is predisposed to believing that circuit court justices are prone to substituting their personal beliefs in spite of the plain language of the law or Constitution, it is easy to be concerned about what she said and how she said it. I don’t subscribe to that belief, largely because as a practicing attorney I recognize that law is complex, and reasonable people can and do disagree over what a certain phrase means or what form of statutory construction to use. Courts grapple with this each and every day.
This is one of those disputes that is determined more by one’s perception of our legal system than out of anything in particular Sotomayor said in that clip or did on the bench.
How long did it take you to write this blog.