Monday, July 27, 2009

Sessions and Sotomayor on Making Law

Senator Session and Judge Sotomayor agreed during her confirmation hearing on at least one thing - good judges should not make law. They were both wrong.

The fact is that judges, particularly Supreme Court Justices, do make law. They cannot avoid it. Judge Benjamin Cardozo wrote the definitive work explaining how judges make law. Judges rely upon precedents, which are decisions in other cases with similar facts and issues. In most cases these precedents are not “on all fours.” The court must select the most persuasive precedent which controls the case at hand. In so doing they extend the influence of one precedent and limit the application of another. Cardozo thus pointed out that the law is made in the interstices between precedents.

Consider the Firefighters case in which Judge Sotomayor’s court was reversed by the Supreme Court last month. The City of Hartford had given a civil service test to firefighters in order to determine who was entitled to promotion. All of the successful applicants were white, and if the test were allowed to stand, no Afro-American firefighters would have been eligible for promotion. The white firefighters claimed that this action was reverse discrimination. Essentially the case involved the primacy of two competing values. On the one side the City was concerned about its duty to avoid discrimination against the historically disadvantaged, primarily Afro-Americans and women. They were apparently concerned that failure to promote any non-whites would be deemed to be unlawful discrimination itself. The white firefighters challenged the city’s action as discriminatory towards them who had achieved the eligibility to be promoted based on merit. The Second Circuit panel, which included Judge Sotomayor, deemed the city’s concerns to be adequate to avoid constitutional challenge. The Supreme Court reversed.

Did the Supreme Court make law in that case? Absolutely. You can be assured that city attorneys throughout the country are writing opinion letters advising their clients that from now on, when they give these tests, they should be prepared to live with the results.

Would the Supreme Court be making law if it had ruled for the city? Absolutely. The opinion letters would have contained different advice that even after the test is taken the city must take a second look to determine whether the exam results had a discriminatory effect.

Regardless of the ruling, the opinion letters would treat the decision of the United States Supreme Court with the same respect and authority as a statute enacted by Congress on the subject.

The Supreme Court makes law in another way. There are thousands of cases filed with the Court every year and which actually hears only about a hundred of them. The decision as to which cases will be heard is highly discretionary. The court does not necessarily pick cases on the basis of whether the decision in the lower court is right or wrong. They search for the cases the are of sufficient importance for them to address the issue.

This process of deciding what case will be heard gives the court the opportunity to pick the subject which the court itself wants to speak about. For instance, when Earl Warren was Chief Justice, a liberal Court took many case involving criminal justice and civil rights. A more conservative Court under Chief Justice Rehnquist look harder as cases dealing with states rights.

Which brings me to another misstatement which Sessions and Sotomayor also cozily agreed upon. They seemed to agree that the personal values of the judge do play a role in judicial decision making. I do not know where they got that from. Court opinions are rifled with explanations as to why their decisions produce a just result. The determination of justices as to what is just is inexorably tied to their own personal moral, practical and ethical values.

Judge Sotomayor made a gaffe in her speech at Duke University when she suggested that a Latino female may be able to decide cases wisely than others. After all a gaffe is frequently an inadvertent blurting out of an unpopular truth. It is foolish to deny that judges are not strongly influenced by their own life experiences when defining what is just and fair. From her point of view I am sure that she believes that her humble beginnings allow her to bring a fresh point of view to the Court. I am disappointed that she backed down on that point.

I am not suggesting that Senator Sessions was making an improper inquiry. He simply did not frame the issue correctly. Court should act within the framework of the law and not stray into matters that are legislative. Activist courts are sometimes accused of attempting to achieve a desired result by disregarding the legal framework in which they operate. Two cases that have been heavily criticized as being non-judicial are Roe v. Wade and the presidential election case which broke the tie between George Bush and Al Gore. Sessions was addressing a concern as to whether Sotomayor acknowledged the constraints that should be placed on the exercise of judicial power. Sotomayor understood what he was driving at and professed that she knew her place. By so doing she has probably avoided a bloody fight over her nomination.

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