Dispatches from the Creation Wars

Conservatives are making a huge deal out of the following statement made by Judge Sotomayor at a conference at Duke University in 2005:

“Court of appeals is where policy is made. And I know – and I know this is on tape and I should never say that because we don’t make law, I know. OK, I know. I’m not promoting it, and I’m not advocating it, I’m – you know. OK. Having said that, the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating – its interpretation, its application.”


This flows naturally from the insistence by conservatives that judges should “interpret the law, not make the law.” But this is a concept that is impossible to coherently define. Where exactly is the line drawn between law and policy? Good luck getting a coherent answer to that question because I’ve never seen one.

And the fact is that the courts often do set government policy, not only by ruling on what the constitution requires but prescribing the means that must be used to meet those constitutional requirements. Take two obvious examples, two of the most famous rulings in the history of the country: Brown v Board of Education and Miranda v Arizona.

In Brown, the Supreme Court did not merely say that “separate but equal” accommodations in schooling (which, of course, were nowhere near equal) were unconstitutional, it prescribed the policy that had to be put in place to remedy the situation. Conservatives didn’t like that at the time, but today this ruling is viewed as one of the most important in our history, so much so that many conservatives have tried to invent fanciful rationalizations for why their arguments against “legislating from the bench” don’t really apply here. But if they do not apply in that case, it’s difficult to imagine how they could be consistently and coherently applied in any case.

The same is true of Miranda, which didn’t merely say that prosecutors could not use statement acquired before notifying a defendant that he had the right to remain silent, the right to an attorney, etc. It also prescribed the exact statement that had to be given and when it had to be given. By any reasonable definition, this is a court making policy. And again, though this was highly controversial at the time and attacked by conservatives, when it came time to reexamine that case a few years ago, even the arch-conservative William Rehnquist upheld it (after spending decades attacking it).

The point is that the line between interpreting the law and making policy is not nearly as clear as conservatives want people to think. Indeed, here is a textbook example of what conservatives really mean when they say a judge should not “set policy” from Charmaine Yoest of Americans United for Life, speaking about Sotomayor:

“She believes the role of the court is to set policy which is exactly the philosophy that led to the Supreme Court turning into the National Abortion Control Board denying the American people to right to be heard on this critical issue,” Yoest said. “This appointment would provide a pedestal for an avowed judicial activist to impose her personal policy and beliefs onto others from the bench at a time when the courts are at a crossroad and critical abortion regulations – supported by the vast majority of Americans – like partial-birth abortion and informed consent laws lie in the balance.”

They think that Roe v Wade was an example of “making policy” but that simply isn’t true. Whether you agree with it or not, Roe v Wade was a decision based on the constitutionality of laws forbidding abortion. So very much like “judicial activism” and its various cognates, when conservatives talk about judges “making policy” or “legislating from the bench” all they really mean is “judges ruling in ways we don’t like.”