Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
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."
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Brown and Miranda are two great examples of one of two types of cases where the word activism could arguably be made; the other type being cases where the courts overturn unconstitutional laws. The former perpetuates the negative connotation of the word, the latter a neutral connotation given judicial powers have been delegated to overturn unconstitutional laws. The former harder to determine and therefore not very useful, the latter can easily be quantified but also not very useful in terms of grading a judge based on his overturn rate alone.
While I applaud the policy results of both of the aforementioned cases, I'm uncomfortable with appellate courts providing the prescription. Optional examples of prescriptions that could be taken by either the Congress or the Executive would be helpful in terms of illuminating the issue, but I find it troublesome when appellate courts create policy best handled by the other branches or in some cases trial courts.
I find this flaw, usually found in liberal judges, to be a far less egregious issue than we find with conservative judges who I find are far more inclined to rule in a manner consistent with the political objectives of their faction. However, I do believe it could be dangerous to the health of our republic if such an approach became more pervasive.
BTW, noted conservative constitutional expert Kenneth Starr (he was also the White Water / Lewinsky scandal chief prosecutor), wrote a fine book on the Constitution several years ago where he concluded the same as Rehnquist regarding Miranda; that it was a horribly reasoned ruling with an ultimately successful result, therefore he also would not overturn.
Posted by: Michael Heath | May 28, 2009 9:44 AM
Republicans being hypocritical? This is shocking!!
And in other news, water is wet, film at eleven! =P
I would like someone who uses any of those code phrases to come up with a coherent definition that isn't easily shown to be wrong or hypocritical by a simple counterexample. I'm not a lawyer, but I know enough cases off the top of my head that I've yet to have someone do so (and I go to the local GOP meetings just for the trolling on topics like this.) I know, I'm a bad man......
Posted by: FastLane | May 28, 2009 9:48 AM
I don't think Republicans should be so worried about Sotomayor's views on abortion rights. She's moderate on the issue at best.
Posted by: catgirl | May 28, 2009 10:06 AM
I don't think they are worried about her at all, I think they just want Obama to catch some overspray from all the red and yellow paint they are trying to apply.
Posted by: rpsms | May 28, 2009 10:40 AM
"The point is that the line between interpreting the law and making policy is not nearly as clear as conservatives want people to think."
Looking at the examples you provided, it seems that the real argument is not that the line is hard to distinguish, but that the Supreme Court crossed the line centuries ago anyway. It seems very clear that they set policy in both Brown and Miranda.
Personally, the biggest issue I see in the Supreme Court is the extreme partisanship. Every judge on the court can be identified in their decisions as Republican or Democrat. I wish presidents would at least maintain a facade of selecting the best candidate for the country, rather than selecting the best candidate for their party.
Posted by: Andrew C | May 28, 2009 12:06 PM
Judging at the appellate level is an extremely complex task. When a case comes before a court, the judges must operate within a whole host of constraints, only one of which is legal doctrines expressed in precedents. They must consider whether an outcome will be just, how it will affect the behavior of others who try to order their affairs according to the decision, whether it will have major social or political ramifications, and whether they can come to that outcome in their own good conscience as people, like anyone else, who are trying to do a difficult job in good faith.
To say that judges should "interpret" but not "make policy" simply does not add up. If judges interpret the law, their interpretation is policy: people, both citizens and government officials, will change their behavior in light of that interpretation.
Nobody in the legal profession, either attorneys or judges, can honestly believe that judges do not make policy. We might wish they didn't or couldn't or wouldn't, but there simply is no way around it, except to completely do away with the doctrine of precedent, so that each case would stand completely independently, judges' future decisions could not be predicted based on past ones, and nobody would rely on court opinions to inform their decisions. But then people would accuse the courts of caprice and tyranny.
Posted by: Peter | May 28, 2009 12:21 PM
Bad policy can be also done with good intentions, like some of the forced busing rulings following Brown.
Posted by: jay | May 28, 2009 12:29 PM
Afaik, Miranda didn't establish a new right. Arrested people alwaysd had the rights Miranda affirmed. What it did was to keep the police from preying on the ignorance of arrested people.
Furthermore, a key component of Miranda was the demonstration that previous attempts to enforce these rights -- by giving defendants right to sue if they were violated -- had proven totally ineffective -- juries wouldn't convict cops for this.
The remedy was made so specific for just that reason, any less specific a ruling would have been 'gotten around' somehow. The key to all three cornerstone 'defendant's rights' rulings, Gideon, Miranda and the one people forget, Mapp v. Illinois, in no way established new law. Prisoners were always entitled to counsel, were always safe from 'coerced confessions' and search warrants were always supposed to be specific.
The trouble was that, without decisions like these -- and without the factual basis of the rulings that these rights were being ignored and that no other remedies had proven effective -- having the rights was meaningless.
Posted by: Prup (aka Jim Benton) | May 28, 2009 12:34 PM
As for 'forced busing,' not only was I bused to school every day from the 3rd through the seventh grade (we used an 8-4 system, not a 6-3-3 one), and when I chose to walk the mile or two home every day rather than put up with one more one hour wait -- my bus was always the last one to leave -- and one more session of third-grade sing-a-long, it was looked on as another one of my eccentricities.
As for 'racial busing' there were plenty of cases where whites who lived near a mostly black school were, rather than be forced to go to school with "n*ggers," bused to an all-white school, with no complaint. But whehn blacks wanted to attend a 'white school,' all the complaints started.
Posted by: Prup (aka Jim Benton) | May 28, 2009 12:46 PM
I think a big problem we encounter when talking about these issues is our apparent inability to make a distinction between reality and aspirations. We would all agree that, in reality, personal bias enters into the process. But that doesn't mean that judges should abandon the aspiration to decide cases solely on the basis of the law (i.e., policy choices already made by our elected representatives). Maintaining that aspiration is a check against the natural urge to defer to personal preferences.
The reason why policy should be made by legislatures rather than judges is that legislatures have the ability to consider how a policy choice will effect a wide range of persons while judges are considering only how the policy will effect the parties to the specific case (i.e., one specific application of the policy in question). Generally speaking, judges don't have any evidence before them about the far reaching consequences of their policy choices might have on non-litigants.
Posted by: Paul | May 28, 2009 1:04 PM
I think a big problem we encounter when talking about these issues is our apparent inability to make a distinction between reality and aspirations. We would all agree that, in reality, personal bias enters into the process. But that doesn't mean that judges should abandon the aspiration to decide cases solely on the basis of the law (i.e., policy choices already made by our elected representatives). Maintaining that aspiration is a check against the natural urge to defer to personal preferences.
The reason why policy should be made by legislatures rather than judges is that legislatures have the ability to consider how a policy choice will effect a wide range of persons while judges are considering only how the policy will effect the parties to the specific case (i.e., one specific application of the policy in question). Generally speaking, judges don't have any evidence before them about the far reaching consequences of their policy choices might have on non-litigants.
Posted by: Paul | May 28, 2009 2:00 PM
Judges make policy all the time. There is so much focus on the Constitutional aspect of SCOTUS, people lose sight that most of what SCOTUS and the appellate courts do involves interpreting Congressional Statutes and Agency Regulations, all of which Congress can go back and rewrite if they think the Court got something wrong, as Congress recently did with the Americans with Disabilities Act amendments. Congress is not only aware of the courts making policy, but they rely on it so Congress can get away with passing crappy legislation.
The Republicans worship Scalia and judges like him, but conveniently ignore that these judges don't believe in looking at legislative history (committee reports and statments made on the Congressional record regarding what a member of Congress thinks a statute means) to interpret statutes. So what ends up happening is they pass a crappy bill that is vague, unclear and most likely incomplete, (how many people have ever read a Federal Statute? I'd like to see them try to interpret one without making policy. Not possible), get up on the floor of the House or Seante and go on ad nauseum about what they think the statute means instead of making sure that the language they used actually means what they think it means, and then bitch and moan when a court doesn't get it "right" or has to come up with some standard for evaluating cases(i.e. policy) because Congress couldn't figure out how to do it.
"Activists judges" are simply judges who are forced to fill in the blanks due to Congress' crappy work. And Congress consciously passes the buck to the Court so that they don't have to clearly take positions on controversial matters. They pass laws and expect the Court to figure out what they meant. Here is an example from the Congressional Record on proposed legislation regarding securities fraud and what a plaintiff had to include in the complaint in order to proceed with a lawsuit:
"While the act requires that plaintiffs plead `Facts giving rise to a strong inference that the defendant acted with the requisite state of mind . . .' The act at no point attempts to define that state of mind. Congress left that to courts to apply, just as they had been applying their definition of state of mind prior to 1995."
So Congress intentionally left setting the standard for establishing securities fraud to the courts, because they couldn't be bothered articulating a standard. The problem was different courts had been using different standards (i.e. establishing policy) and Congress did nothing to resolve the issue. But those damned activist judges insist on legislating from the bench. Someday Congress will wake up and realize that if it did a better job legislating judges wouldn't have to.
Posted by: Liz | May 28, 2009 2:46 PM
I think you went down the rabbit hole one too many times, Liz! :-)
-Rusty
Posted by: minusRusty | May 28, 2009 4:29 PM
Gotta say Liz, I think you're pretty well spot on. Now granted, I think that only part of the problem is Congress passing crappy laws, it's also that to a certain extent, the law has to be vague enough to apply to lots of cases and hopefully judges will use some intelligence in applying said law. Such as that case with the "state of mind" mentioned earlier; can anyone accurately write out a state of mind and make it legally applicable in the right cases? I guess I just think judges can make those kinds of determinations better than words on paper.
Posted by: Rob | May 28, 2009 4:39 PM
Rob, many laws have state of mind requirements: knowingly, intentionally, recklessly, grossly negligent, etc. I can't think of any criminal law that doesn't. In the example above, Congress easily could have decided whether recklessness was a sufficient state of mind for holding someone liable for securities fraud, in the legislative history numerous Reps. and Senators said that they thought that was what the standard should be. They also could have picked one of the 10 different standards the appellate courts were using and incorporated it by reference to the case law in the statute. But none of them though it important enough to clarify that in the law.
What I find so frustrating in the "debate" over Sotomayor is that so few people have any understanding of how our legal system works, the interplay between Congress, Executive Agencies, and the Courts, so they have no idea how much B.S. they're being fed. People talk about the "law" and "applying the law" and they truly have no idea what the law is, where it comes from or how judges go about figuring any of that out. It makes it so easy for the wingnuts to whip them up into a frenzy.
Posted by: Liz | May 28, 2009 5:59 PM
Activist judges have been on the Supreme Court since John Marshall and his court handed down Marbury vs. Madison in 1803. And given the elegant simplicity of our Constitution (and the sloppiness of Congress in crafting all too many laws), the Supreme Court will remain activist for centuries to come. Even Scalia has spoken of the need for and reality of the higher courts, both the appellates and the Supreme, to make law. The Republicans are nothing but hypocrites playing to the ignorance of their base—and in many cases their own ignorance.
Posted by: Keanus | May 28, 2009 11:00 PM
Liz:
I wonder if the main reason for this is that your laws are written by amateurs. In New Zealand there is a group of specialist government lawyers (The Parliamentary Counsels Office) who ensure consistency in our legislation. When a bill is introduced by the government, the PCO writes it up from a brief approved by the appropriate Minister. If its a Private Member's Bill (I think all of your laws are like this) the there's a PCO adviser to the select committee discussing the bill. The adviser offers a range of non-partisan changes to clean the bill up and make it work better.
This means our laws are relatively simple and are written in a consistent style, making them easier to interpret.
Posted by: James K | May 28, 2009 11:59 PM
James K:
Most of out Senators and Representatives are lawyers by training. The vagueness common in our laws has two root causes: First, when there's some contention within Congress about the language of a bill, the easiest way to get it passed is to leave the language on the issue unclear to limit objections.
Vagueness also provides political cover, as a member of Congress can always claim that they had an opposite intent to what a court decided a bill meant.
Posted by: Joe | May 29, 2009 2:36 PM