Sotomayor: Courts are where policy is made

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.