Sotomayor nomination

[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.

[Happy Monkey]

Originally Posted by Beestie

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."

Sounds like policy to me. Policy for the legislators, which is converted into law, and then converted back into policy by the executive.

In addition, most Judicial policy comes from the Appeals courts, as the lower courts aren't strong precedent, and the Supreme Court doesn't take many cases.

[Beestie]

Originally Posted by Happy Monkey

Sounds like policy to me.

I don't think of it as policy because the what the Court is really doing is saying that the policy coded into law (thou shalt not stand in thy yard after 7:00) prevents citizens from exercising their rights granted them in yet another policy document: the Constitution.

So the Court must first conclude that the law being challenged does, in fact, conflict with the Constitution. Since the Constitution is a document that grants rights, its necessarily non-specific. The law, being prohibitive, is necessarily very specific. So this presents the Court with two questions: Did the law prevent the exercise of Constitutional rights in the facts of the case before it and secondly, could the law conceivably prevent the exercise of Constitutional rights for anyone ever.

By answering those two questions, the Court is merely adding definition and clarity to the law (if poorly written) and to the necessarily vague terms used in the Constitution. And, in the event of a conflict, declaring the law invalid. In a way, its as if the law itself is on trial. Guilt is established if it can be demonstrated that exercising a any Constitutional right would lead to a violation of the law in question.

By answering those questions truthfully, honestly and as objectively as possible, the Court has not created policy.

If, however, the Court rules with bias and subjectivity by not objectively analysing the degree to which the law and Constitution are in conflict, then I have to agree with you that they are making policy via judicial activism. In theory, this should never happen. But judges are just like the rest of us and can only do their best not to be influenced by ideas that originate outside the facts of the case.

[xoxoxoBruce]

Originally Posted by Beestie

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.

The police don't wait for the legislature to change the law. When the court says the law (or part of it) is unconstitutional, the police change their policy immediately. They don't waste time, and resources, arresting people that can't be convicted in court, while the legislature corrects their mistake.

[Beestie]

Originally Posted by xoxoxoBruce

The police don't wait for the legislature to change the law. When the court says the law (or part of it) is unconstitutional, the police change their policy immediately. They don't waste time, and resources, arresting people that can't be convicted in court, while the legislature corrects their mistake.

Actually, they are ordered to cease enforcement as part of the disposition of the case. That discretion is not left up to the police chief.

[Happy Monkey]

Originally Posted by Beestie

Actually, they are ordered to cease enforcement as part of the disposition of the case. That discretion is not left up to the police chief.

So the police are ordered to change their policy by the court?

[Beestie]

Originally Posted by Happy Monkey

So the police are ordered to change their policy by the court?

I feel obliged to provide an answer with citations and will try to dig some up as I have time and will post again when I can provide a more detailed and substantiated answer.

[Beestie]

Originally Posted by Happy Monkey

So the police are ordered to change their policy by the court?

OK, got the scoop. What happens is the judge issues a injunction against enforcement of the law which effectively bars the police from charging anyone with the crime of violating the newly overturned law. I think in some cases, the injunction is not issued if the judge is assured by the attorney(s) general that enforcement will cease until the law is officially stricken from the books.