Sotomayor nomination

[Beestie]

Originally Posted by Judge Sotomayor

The court of appeals is where policy is made. And I know — I know this is on tape, and I should never say that because we don’t make law. I know. O.K. I know. I’m not promoting it. I’m not advocating it. I’m — you know.

Policy is not made in a courtroom.

Originally Posted by Judge Sotomayor

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life...

Better for who?

Originally Posted by piercehawkeye45

The justice system was designed NOT to be objective.

Not to be objective? Who said that - Karl Marx? On the contrary, it was designed to provide "Equal Justice Under Law" as personified by:

Themis, the Goddess of Justice who since Roman times has reined as the foremost personification of virtue and justice, representing both impartiality and power. Her blindfolding, which dates to the 16th century, shows that her justice is fair and not subject to influence.

[xoxoxoBruce]

Originally Posted by Beestie

Policy is not made in a courtroom.

It isn't? Don't court rulings set future policy for the police, the DA's office, for lower courts?

[Beestie]

Originally Posted by xoxoxoBruce

It isn't? Don't court rulings set future policy for the police, the DA's office, for lower courts?

Explicitly not by virtue of the separation of powers. Congress writes the laws, the president enacts laws and the Supreme Court either determines whether or not a law violates the Constitution (e.g., the law banning guns in DC was overturned on Constititional grounds) or it hears/rules on appealed lower court rulings when the Court believes that either the law or the Constitution is not sufficiently clear and hence the guidance of the Court is needed (e.g., is abortion a crime or is it not?). The Supreme Court may also be called upon to resolve legal quandries like determining what to do when, for example, Federal law and state law (or any two laws) directly contradict each other such that a citizen is forced to break one to obey the other.

Interestingly, the Supreme Court frequently hears cases on the basis that the lower court's ruling was not based on prudent and reasonable interpretation of existing law- e.g., the lower court "just made it up." When a court's ruling is "made up" and not based on applying the law as written, its called judicial activism - the court assumes the role of legislator.

The remedy for lower court judicial activism is appeal to a higher court. The remedy for judicial activism at the Supreme Court level is... uh... well... there isn't one. Yep, that's the only weakness of our form of government - there is no built-in remedy for judicial activism at the Supreme Court level. And that is why the question is so important in Supreme Court confirmation hearings.

Almost in as many words, nominees are often asked: Are you going to base your rulings on the law(s) as written or are you going to 'write your own law' then base your ruling on that? Because a) there is really nothing to stop them from doing it and b) there's really not a whole lot anybody can do to fix it if they do.

[xoxoxoBruce]

Yes, I understand all that, but don't their rulings determine future policy for law enforcement?

[Beestie]

Originally Posted by xoxoxoBruce

Yes, I understand all that, but don't their rulings determine future policy for law enforcement?

Their rulings help an officer to decide whether or not a law has been broken but the underlying law is no different than it was before the ruling was made. The key word in your question is 'determine.' Not to beat this completely to death but the court does not determine what the law is, it determines whether or not the law applies in a given situation.

Another side to the question involves civil disputes. Let's say you want to build a house on the beach so you buy a lot after determining that the zoning of the parcel permits the construction of single-family residences. Adjacent lots already have houses on them. Then, one day, you learn that the zoning board has rezoned your property such that you are not allowed to build a dwelling on it. You can build a deck but nothing else. Instantly, the value of your parcel drops from $1M to $50k. You sue the government for $950k argueing that the downzoning amounts to a 'taking' under the emminent domain provision of the Constitution. You lose at the local level. You appeal and win at the state level. The state appeals and wins. You appeal to the Supreme Court.

This really happened (in South Carolina). The citizen won and the state was ordered to compensate him as called for in the Constitution.

I thought this specific example might help clarify the intent of the question of the effect of the court's rulings on the determination of policy (as enacted by law).

[xoxoxoBruce]

If the court says the law allows women may go topless on the beach, the police will adopt a policy of not arresting topless women on the beach.
Department policy stems from court rulings.

[Beestie]

Originally Posted by xoxoxoBruce

If the court says the law allows women may go topless on the beach, the police will adopt a policy of not arresting topless women on the beach.
Department policy stems from court rulings.

The law never "allows" it only prohibits. Hence the court cannot say the law allows something; it can only say it is unconstitutional to prohibit something. Police Department policy, therefore, is only concerned with what the law prohibits as written in statutory law. If the court strikes down a law, it is subsequently removed from the statute and whatever was prohibited is no longer prohibited.

Your example necessarily implies that first there was a law in place requiring women to wear no less than bikini tops and second, someone was arrested, charged and convicted for violating that law and third, the convicted person appealed the conviction on the grounds that the law was somehow invalid (unconstitutional, let's say) and the Supreme Court ruled in their favor.

So the court never explicitly said "Hear ye, hear ye - all y'all women folk are hereby allowed to bare it all on the beach", rather, the Court said to the legislators "thou shaltest not enact any law requiring women to wear tops at the beach."

Legislators fill the glass, occasionally the Supreme Court siphons off an ounce or two but the police only care about what's in the glass. So really, police policy takes its direction from the legislators who create the laws. The court only gets involved when a law is unclear or unconstitutional in which case its the legislators who change the body of law to conform to the court's findings. The police never (officially) take their eye off the legislators.

So basically, we start with the Constitution which outlines our rights. Note that the Constitution does not explicitly prohibit the citizens (although it does prohibit the government). Next comes legislators who create law. The government is within its right to prohibit any activity not explicitly granted by the Constitution. Then comes police to enforce the law. Then comes the Supreme Court to (among other things) protect citizens against laws that are against the law.

Note also that the Court does not act until a case is brought before it. So a law could be passed tomorrow making it illegal for me to buy food. The Court is not going to step in and strike down the law. I have to be arrested, convicted and lose every lower court appeal before the High Court will agree to hear the case.

Anyway, this is a fun discussion.