AP "Fact Check" says conservative judges don't say judges make policy -- but Scalia does
SUMMARY: Referring to Sonia Sotomayor's comment that "the court of appeals is where policy is made," the AP stated that "conservative judges avoid the 'making policy' shorthand." In fact, Supreme Court Justice Antonin Scalia has said that lower court judges "often 'make law.' "
A July 14 Associated Press "Fact Check" said of Supreme Court nominee Sonia Sotomayor's 2005 statement that "the court of appeals is where policy is made": "There is no dispute that appeals courts interpret laws and regulations, sometimes throwing them out entirely. The difference is that conservative judges avoid the 'making policy' shorthand." In fact, Supreme Court Justice Antonin Scalia has said that lower court judges "often 'make law' " [italics in original].
Additionally, as Media Matters for America has noted, several legal experts have stated that Sotomayor's comments are not controversial. And PolitiFact.com has said:
To the extent that the [Republican National Committee] raises the point to suggest it means she would be an activist judge on the Supreme Court, we think that's misleading. Sotomayor even noted that judges don't make law, that she was talking about interpreting and applying it.
As The Huffington Post has noted, in the case of Republican Party of Minnesota v. White, Scalia -- in a majority opinion joined by then-Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Anthony Kennedy, and Clarence Thomas -- noted that state court judges make "common law." Scalia then stated in a footnote [bolding added]:
Although Justice Stevens at times appears to agree with Justice Ginsburg's premise that the judiciary is completely separated from the enterprise of representative government, post, at 3 ("[E]very good judge is fully aware of the distinction between the law and a personal point of view"), he eventually appears to concede that the separation does not hold true for many judges who sit on courts of last resort, post, at 3 ("If he is not a judge on the highest court in the State, he has an obligation to follow the precedent of that court, not his personal views or public opinion polls"); post, at 3, n. 2. Even if the policy making capacity of judges were limited to courts of last resort, that would only prove that the announce clause fails strict scrutiny. "[I]f announcing one's views in the context of a campaign for the State Supreme Court might be" protected speech, post, at 3, n. 2, then-even if announcing one's views in the context of a campaign for a lower court were not protected speech, ibid.-the announce clause would not be narrowly tailored, since it applies to high- and low-court candidates alike. In fact, however, the judges of inferior courts often "make law," since the precedent of the highest court does not cover every situation, and not every case is reviewed. Justice Stevens has repeatedly expressed the view that a settled course of lower court opinions binds the highest court. See, e.g., Reves v. Ernst & Young, 494 U.S. 56, 74 (1990) (concurring opinion); McNally v. United States, 483 U.S. 350, 376-377 (1987) (dissenting opinion).
From the AP article:
SEN. JEFF SESSIONS, R-ALA. SAID: "You previously have said, 'the court of appeals is where policy is made.' And you said on another occasion, 'The law that lawyers practice and judge declare is not a definitive -- capital L -- Law that many would like to think exists.'"
THE FACTS: Sessions quoted Sotomayor correctly in both cases.
In a 2005 Duke University panel discussion, a student asked whether it's better to clerk for a district judge or an appellate judge. She told the student that, if pursuing a career in public-interest law, then appeals court experience is important.
"The court of appeals is where policy is made," she said, adding moments later, "I know this is on tape, and I should never say that, because we don't make law. I'm not promoting it, and I'm not advocating it. I'm -- you know."
Sotomayor said Tuesday that she was trying to distinguish between fact-specific district court decisions and the precedent-setting decisions of appellate courts. There is no dispute that appeals courts interpret laws and regulations, sometimes throwing them out entirely. The difference is that conservative judges avoid the "making policy" shorthand.
The second quote Sessions cited was from a 1996 speech and article. Sotomayor said there is no hard-and-fast law, per se, because the law is a human creation, something that changes. As an example, she noted that in 1896, the Supreme Court declared school segregation constitutional. In 1954, the court reversed itself in the landmark Brown v. Board of Education case. Same Constitution, same issue, different justices on the high court, different definition of what the law was.
You betcha! And you're a pinko flower-lover, too.
Judges have and do make law throughout our legal history (heck, the power of the courts to review constitutionality of laws is judge-made law!)
And in many areas of law courts have determine the intent and expectations of the parties before them. To do so, they have to exercise their powers (sometimes unfortunately too limited) of empathy
As Justice Scalia makes clear, one of the principal characteristics of common law is that JUDGES MAKE LAW. If judges couldn't make law, then there would be little reason for courts of appeal - any problem with applying or interpreting the law would have to be turned over to the legislature for resolution. Clearly this isn't what happens in our system.
So when we're talking about judges making law, we're simply acknowledging a basic fact about the architecture and function of our legal system. They're not the only ones making law of course, but they play a critical role in filling in the gaps and smoothing out the rough edges of the law as cases warrant. It's not politically correct these days for judges to admit it, but our system couldn't work if it were any other way.
Our legal system is based on "precedent" (reliance on previously decided cases). Thus, an appellate court's decisions are "precedent" that the lower courts in the appellate court's jurisdiction must follow (apply). Because the United States Supreme Court is the "highest court in the land," the Supreme Court's decisions are binding on all courts in the United States.
Now, as to the role of the judiciary, in the United States laws are made at the federal and state levels. Laws adopted by legislative bodies - Congress and state legislatures - are called "statutes."
The federal and state courts enforce the statutes and interpret the Constitution. Furthermore, in a common law system as ours, there are many unlegislated areas where the only ultimate guidance for the courts is the US Constitution (if it even applies). In doing so, the appellate and Supreme courts create law. It's not a matter of being activist judges or what have you. It's just the way it is. Of course, when it comes to interpreting the Constitution (or any statute) there will be different opinions and viewpoints. If you want an interpretation of the law denied of all human influence, get a robot. Let's see how that works.