Over and over again during her confirmation hearings, Judge Sotomayor said that “job of a judge is to apply the law” not to make it. Judges don’t make law. Congress, and state legislatures, make law. Judges apply it.
The reason Sotomayor had to keep telling the Senators that, as an appellate judge, she applied the law and didn’t make it, is because in 2005, she said in a speech that “the court of appeals is where policy is made.” And she knew right away that she shouldn’t have said it, following her comment with “and I know this is on tape and I should never say that because we don’t make law. I know. Okay, I know. I’m not promoting it. I’m not advocating it. I know.”
Well guess what? She was right in 2005, and wrong last week. And even more than the appellate courts, where judges are restricted by precedent, the Supreme Court is where laws are made.
More after the jump.
Way back in 1803, Chief Justice John Marshall declared that the Supreme Court has the power of “judicial review” in Marbury vs Madison. Nowhere in the Constitution is the Supreme Court explicitly given the power to determine the constitutionality of laws. In the majority opinion Marshall declared that
and that the courts must be able to declare laws in violation of the Constitution, and therefore void. I would say that giving his court a huge legal power (even if Marshall never used it again) counts as making law.
Want more recent examples? Miranda vs. Arizona. Everyone knows about your Miranda rights, as repeated on countless cop shows. The Founders did not write that little speech in the Constitution, nor did Congress write it in a bill. Chief Justice Earl Warren found that the Fifth Amendment, which only says
“No person… shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law”
“…the person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.”
Clearly creating a new legal requirement.
Even more recent? We can do that, too
According to the majority opinion (PDF), the 2009 case Safford Unified School District v. Redding held that
“Although the strip search violated Savana’s Fourth Amendment rights, petitioners Wilson, Romero, and Schwallier [the school officials] are protected from liability by qualified immunity because ‘clearly established law [did]not show that the search violated the Fourth Amendment'”
Before the case, strip searches for over the counter drugs on a 13 year old was maybe legal– enough that the school officials can’t be prosecuted for it. Now? Definitely not.
During his confirmation hearings, Chief Justice John Roberts famously declared “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role.” Roberts signed on to the Safford Unified School District v. Redding opinion. If he didn’t know it then, he knows it now: judges, particularly Supreme Court judges, make law.
And the Senators who questioned Judge Sotomayor last week should know it too.