Sotomayor: Courts are where policy is made

posted at 7:55 pm on May 3, 2009 by Allahpundit

Via Gabriel Malor and Verum Serum, I’m trying to muster some outrageous outrage but can’t pull it off. Of course courts make policy. Every time they “interpret” a constitutional clause or statute, they add interpretive rules to guide lower courts; because of stare decisis, every court opinion is in essence a new bit of binding policy gloss on the statute in question. For example, there’s nothing in the Constitution about when defamatory speech should be protected. The public figure/private figure standard is a judicial creation which operates in effect as policy because that’s the standard lower courts apply when weighing a First Amendment defense to defamation.

All Sotomayor’s saying, I think, is that it’s pointless to pretend judges don’t have an active hand in shaping policy. That’s standard legal realism, contra the silly legal formalist theory of judges somehow suppressing all human bias and “scientifically” deducing the answers to tough problems. Because she’s a sitting judge she has to pay lip service to the idealism of the latter, but let’s not kid ourselves.

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Sotomayor: Courts are where policy is made

For this very statement, is the reason that many federal judges need to be removed, they ARE NOT the legislative branch of government. Judges and their buddy lawyers have built a false, and phony screen around themselves, in the guise of “judicial independence.” The term “judicial independence” has been manufactured, by them and CAN NOT be found anywhere in the Constitution, but IMPEACHMENT is clearly there. Constitutional usurpers need to be booted, fast, and quickly.

byteshredder on May 4, 2009 at 2:45 PM