Sotomayor nomination

[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.