Sotomayor and Judicial Activism

President Obama nominated Sonia Sotomayor to the Supreme Court and conservatives are gearing up for a fight. They are not finding a lot of ammunition so far, but there is one bullet they find particularly potent:



So Sotomayor thinks that policy is made in the Courts of Appeal. If it wasn't so absolutely and incontrovertibly true, it might just be appalling.

The United States is a common law country, and it has been since its inception and our legal roots go back hundreds of years to the English common law system. Common law is a system in which the law is developed over time by judicial decisions which hold precedent over subsequent decisions. Just about every basic law we have was developed by courts over hundreds of years of decisions, from criminal law to contract law to property law to torts and on and on.

This is opposed to a civil code jurisdiction which is governed by, just that, a civil code. The United States is moving in that direction, codifying most of our laws, but in true civil code jurisdictions like France and South American countries the courts hold no precedential weight.

So what does this all mean? It means that judges make law all the time and have done so for centuries. Sotomayor's comments in the Youtube clip were in response to a question about the differences in being a law clerk in a district court (trial court) and the Courts of Appeal. Trial court decisions hold no precedent. Other trial courts can follow or not follow another trial court decision as they please. As a result, trial judges look narrowly at the law and facts before them and decide accordingly.

Appellate court decisions do hold precedent and thus the judges need to have a more broad view of the law in making their decisions. They need to think about how the decision will affect other courts and litigants in the future. They need to think about how a decision fits in with all the other pieces of law that surround it. They absolutely must make policy decisions. Their job would be impossible if they did not, and the legal system would be in disarray because no courts would be thinking about the big picture. It is silly to act like appellate courts should not consider policy when making their decisions.

Legislatures and Congress, for example, often pass laws that are worded vaguely or subject to multiple interpretations. Sometimes they do this on purpose and sometimes out of oversight and sometimes out of incompetence. It is up the judiciary, then, to divine the legislatures intent (if possible, because often its not) and interpret the law accordingly, with an eye toward the effect of the decision on future actions and litigation. This is one ways courts "make" law, by interpreting statutes. This type of analysis requires consideration of public policy.

It is equally silly to rail against judicial activism. I suppose judicial activism is where a court overturns a law enacted by the legislature or enumerates a right or activity as legal/illegal where legislatures have not spoken.

As to the first, that is often the exact role a judge must play, and it is done all the time by both conservatives and liberals. I can find just as many decisions of conservatives overturning laws they don't like as you can liberals doing the same thing. If a law is unconstitutional, irrational, or unsupported by facts it is the courts' duty to overturn that law. This is part of the principle of checks and balances that is essential to our system of government.

As to the second, the courts are often (almost always, really) on the front lines of constitutional issues. The Constitution is an amazing document. It was purposely written broadly to allow for the inevitable changes in society. The Framers could not possibly have imagined a society so complex and different from the one they lived in, and yet they drafted a Constitution that is equally applicable and useful today as it was over 200 years ago. But what it means is that society is necessarily going to view certain provisions differently than had been done previously.

So when an issue of constitutionality comes before a court where Congress has not acted, it is often required of the courts to make hard decisions. In fact, it is the express duty of the Supreme Court to be the final interpreter of the Constitution. Courts often find themselves in the position to announce new or altered interpretations of the Constitution, and time and public opinion usually bare those decisions out. The Courts are not always right, but they do a fine job in the face of big and difficult problems.

Over the next few months we are going to hear a lot about judicial activism. Just remember that "judicial activist" is simply a code phrase for "liberal" and nothing more. There are serious and interesting debates about the role of the judiciary branch in the United States, but this really isn't one of them.