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Courts Are "Where Policy Is Made":

A video of Sonia Sotomayor, a judge on the U.S. Court of Appeals for the Second Circuit widely viewed as a short-listed for the Supreme Court, is making the blogospheric rounds. In the clip, she says that the courts of appeals are "where policy is made." Some seem to think that this is a damning statement and evidence of closet "judicial activism." I don't. As presented in the clip, it seems to be nothing more than an observation that, as a practical matter, many policy disputes are resolved in the federal courts of appeals. This is an indisputably true observation. Moreover, the fact that many policy disputes are resolved in federal appellate courts does not mean that judges are resolving those cases on policy grounds. Litigation over the interpretation or implementation of a federal statute will have significant policy implications -- and deciding the case will, in many instances, "make policy." But this is wholly consistent with the idea that a judge's responsibility is to interpret and apply the law without regard for those policy consequences. Further, given the context of Judge Sotomayor's remarks, it is totally understandable why some prospective employers would want to hire individuals who are exposed to these sorts of cases. So, in sum, I don't think the statement on this video clip is a big deal. Move along.

Related Posts (on one page):

  1. The Sotomayor Video:
  2. Courts Are "Where Policy Is Made":
Constantin:
It's not evidence of closet judicial activism, only because she knew she was being taped and said it anyway. So it's not closeted.
5.3.2009 4:16pm
Volokh Groupie:
Yeah, I tend to look at her comment as a statement of fact as well. You can bet it'll come up in hearings if she gets nominated though.
5.3.2009 4:25pm
PersonFromPorlock:
May I suggest that where a law needs to be interpreted, as laws so often do, the court's real duty is to find it unconstitutional for vagueness and leave it up to Congress to do a better job next time.
5.3.2009 4:27pm
TerrencePhilip:
Damn her for her candor!

Vast fields of law, such as antitrust, are more or less explicitly punted by Congress to let the courts devise rules of decision. Important constitutional cases almost always lack an obvious correct answer.

But by all means, let's just pretend this isn't true.

*rolls eyes*
5.3.2009 4:33pm
Glen Alexander (mail):
Sorry, Professor Adler, I think you prevaricate a bit much.

I heard Judge Sotomayor very much saying that policy is made in the courts of appeals (of which the Supreme Court is the court of last appeal) — especially when considering her comments in context.

She was giving career advice to law students, suggesting that clerking for a circuit court judge would be very desirable experience for work at an activist legal defense funds. These groups very much attempt to drive political policy through litigation. The laughter reinforces the factual statement that appeals courts in fact do make policy — it's just a dirty little secret that everyone in the room already understands.
5.3.2009 4:35pm
Bart (mail):
Saying that the circuit courts of appeal are "where policy is made" is pretty clear and not nearly the same thing as saying: "We apply the law without regard to policy."

After all of his talk that judicial nominees should demonstrate "empathy" for Dem constituencies, does anyone doubt that Mr. Obama has a litmus test requiring his appointees to make policy under the guise of applying the law? After all, one does not require that referees demonstrate empathy in favor of one of the teams in a sports contest.

Mr. Obama is looking to fix the judicial contest. It appears that Judge Sotomayor is just the kind of jurist Obama is looking for.
5.3.2009 4:43pm
Oren:

May I suggest that where a law needs to be interpreted, as laws so often do, the court's real duty is to find it unconstitutional for vagueness and leave it up to Congress to do a better job next time.


Only if we triple the judiciary so that cases can be resolved before the next Congress is in. Most of the time, it takes 2-3 years to get a ruling.
5.3.2009 4:48pm
dmv (mail):

Mr. Obama is looking to fix the judicial contest.

OH NOEZ!!111!1!!1!! Say it ain't so!

Or say it's what every President nominating Supreme Court justices is doing.

Naaaaah, surely not...
5.3.2009 4:51pm
Ohio Scrivener (mail):
In the video, Sotomayor attempts to walk back her "where policy is made" statement. Whether she did this out of a desire for political cover ("This is on tape, and I know we should never say this") or because she disagrees with judicial activism, and does not want to leave the incorrect impression, seems like an important distinction.

Either way, her statement will have little impact if she is nominated thanks to the current composition of the Senate.
5.3.2009 4:54pm
Cornellian (mail):
Re Congress punting policy decisions to the courts, see, e.g., F.R.E. 501:

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.

It's hardly shocking to say that there's an element of policy involved in applying such a rule, or that it typically happens at the appellate level rather than the trial level. The common law has always worked this way. Practically the whole of antitrust law works that way because that's the way Congress set it up.
5.3.2009 5:07pm
widget:
A narrow escape for Judge Sotomayor! It's certainly lucky for her that she never said anything as incendiary as that "[e]very important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy." No one who would say something like that could possibly have an appropriate judicial philosophy.

(Link.)
5.3.2009 5:08pm
Gabriel Malor (mail):
As presented in the clip, it seems to be nothing more than an observation that, as a practical matter, many policy disputes are resolved in the federal courts of appeals.

You're putting a happy spin on this, something that she obviously didn't think of at the time. If she had merely been saying "policy disputes are sometimes resolved in the courts" there would have been no need for the "I know, I know, I shouldn't have said that on tape."
5.3.2009 5:10pm
AntonK (mail):

"In the clip, she says that the courts of appeals are "where policy is made."
If she'd know she was going to be on Obama's shortlist for the SC, I'm sure she would have modified the above to say, "Courts of appeals are where empathy is mandated."
5.3.2009 5:19pm
Brett Bellmore:
And banks are where the money is. But we'd need more evidence to know if the statement was in the same spirit.
5.3.2009 5:49pm
Constantin:
Wait, Widget, you're trying to assuage (or shut down) conservative critics of Sotomayor by saying it's no worse than something Holmes wrote?

I think there are plenty of us who take issue with Sotomayor's quote and judicial record who would argue that Holmes did not, in fact, "have an appropriate judicial philosophy."
5.3.2009 6:05pm
John VS (mail) (www):
Since I'm not an attorney, I'll defer to your expertise on what's normal and not about her statement. However, you haven't really captured the essence of the clip itself in your response.

Sotamayor says the appeals court is where policy is "made" not where it is decided according to prior precedent or where competing claims are adjudged. And there's no doubt she knows the difference when she says it, for she immediately regrets saying it.

If what she's saying here isn't problematic in any way, why does she backtrack so fast? Seems to me even she senses the problem (even if you don't).
5.3.2009 6:31pm
drunkdriver:
John VS,

she reacts to her own statement this way as a lighthearted acknowledgement that some people seize on such statements and portray them out of context; ironically that is exactly what is happening here. But sure, in some small way she probably surprised herself by letting the mask slip a little. Every appellate judge, conservative or liberal, does a bit of policymaking in their rulings, they just don't always come out and admit it.

If anyone thinks they know of an appellate judge, or supreme court justice, who does not make "policy" with their rulings-- kindly point that judge out to me.
5.3.2009 6:39pm
Roguestage:
Wow. Thirty seconds of a video clip and how many hundreds of people are frothing at the mouth now?

Seriously. Thirty seconds of a video clip. Okay, thirty-four. I think it's impossible to tell much of anything about her judicial philosophy from something that truncated, and people are putting their own preconceptions of what they fear or want in an Obama nominee on top of it.
5.3.2009 6:44pm
one of many:
I do wonder about the context, the bit about "legal defense funds" before that and the attempt to "backtrack"/clarify which starts afterwords are interesting. If someone wants to wade through the entire clip and see what the context is, it can found here, personally I haven't the time and interest at this point to check the context.
5.3.2009 6:48pm
Wayne (mail):
It seems to me the common law is judicially created law, based on policy grounds. Judges have always made policy decisions, and always will in our system.
5.3.2009 8:36pm
trad and anon (mail):
Wow, the people who are becoming hysterical about this comment really don't want to live in a common-law legal system. Go move to France or something.
5.3.2009 8:40pm
widget:
Constantin, I certainly have no power to shut anyone down, and I doubt I'm going to assauge anyone either.

Let me put it this way: if I were putting forth a line of reasoning, and it led me to the conclusion that Justice Holmes had not been qualified to sit on the Supreme Court, I would consider that a severely counterintuitive result that would cause me to review my premises and reasoning very carefully.

If you don't find it a counterintuitive result, or if you've already doublechecked and found no errors, then by all means carry on.
5.3.2009 8:59pm
widget:
"Assuage." I am even less likely to "assauge" anyone so long as I am operating within the bounds of the English language.
5.3.2009 9:19pm
Cornellian (mail):
Sotamayor says the appeals court is where policy is "made" not where it is decided according to prior precedent or where competing claims are adjudged. And there's no doubt she knows the difference when she says it, for she immediately regrets saying it.

The phrase "the court made law" is regularly used to describe a particularly landmark decision and the phrase has been around forever. It's also been literally true since the dawn of the common law just under a couple thousand years ago, and will continue to be true for so long as we live in a common law system.
5.3.2009 9:23pm
Psalm91 (mail):
Here we go, the new "Bill Ayers" smoking gun courtesy of the opposition research group. Pretty quick work.
5.3.2009 10:09pm
Yuiop:
widget,

what is your issue with the word "assuage" actually?
5.3.2009 10:31pm
Swede:
This is an interesting look, not at what she has to say (it's obvious, she said it), but at how people will come out and say that's not what she really meant. Or that she really meant something else.

Kind of like the 2nd amendment. It's written down. It says what it says. But, apparently for some people, that's not what it really means.

Huh.
5.3.2009 10:33pm
Sarcastro (www):
yes, Swede, language has only one meaning.

Everybody, stop studying legislative history! And poetry!
5.3.2009 11:05pm
Paul A'Barge (mail):

where policy is made


==


many policy disputes are resolved in the federal courts of appeals


??

Move along, indeed.

No need to trouble the man behind the curtain, dancing a jig while pulling the levers, and spinning to beat the band, eh Adler?
5.4.2009 12:16am
Ben Franklin (mail):

So, in sum, I don't think the statement on this video clip is a big deal. Move along.


Wink, wink, nudge, nudge.

Apparently, words have no meaning... when it is convenient for us to so pretend.

You have your orders. Move along!
5.4.2009 10:41am

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