Wednesday, May 27, 2009

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.


Josh said...

Jake, I've been absent a while. I just wanted to ask why you like the idea of the Judicial system making law? Who do you think you're fooling, saying that it has always been the way? The purpose, as described by the Founding Fathers (of course, I realize that liberals don't believe in the Constitution the way it was written, but only in their interpretation of it), of the Judiciary is to enforce the laws passed by the Legislature. It was never, and should not be, the right of the Judiciary to "interpret" the law, and, in effect, make new law! It needs to stop. Once again, I know my feelings fall on deaf ears here, but I feel that this woman is a bad choice for a Supreme Court Judge, and so is any Judge who feels that it is her/his responsibility to make law. We have plenty of law, and not enough common sense!!!

Jacob S. said...

Actually, the purpose of the executive is to enforce the laws of the legislative. The purpose of the judicial is to interpret those laws because they are often ambiguous and are often unconstitutional. That is the whole point of checks and balances. The judiciary should not just be a rubber stamp for the legislative, because that would betray the system of checks and balances set up by the Constitution. That doesn't mean that courts don't go too far at times, they certainly do, but again the system of checks and balances evens that out over time.

I also think that the Republicans are sorely miscalculating by trying to brand Sotomayor as a racist. All she ever said was that her background and life circumstances color her views. Who in this world can dispute that? That doesn't mean she can't be objective. But everyone is subject to their past.

peter said...

I actually think that what she said was that her ethnicity and her gender made her a better judge than a white guy.


Matthew said...

Josh- it is clearly the role of the Judiciary branch to interpret the law as to its correspondence to the constitution and not their own personnel opinions. For example I might be a Mormon but I am not suppose to interpret the law as if it were according to the scriptures but rather I am to interpret the law based on the constitution. So you see Josh the SC does interpret law they do it all the time its why they are there but not as to their own biases but to that of the constitution. A good Supreme Court justice will have the personnel discipline to separate themselves from the issue and only look at the constitution that they themselves should be scholars over. With that said I cant in good conscious say that Sotomayor would be the best choice for the Supreme Court.