It's Just What I Always Wanted!

The court of appeals is where policy is made.

From Obama's attempt to outblunder Reagan, Sonia Sotomayor.

I know, I'm coming to this late. I don't really care much about the nomination, because it's no surprise - the race-obsessed man in the White House picked a race-obsessed woman to sit on a black-robed bench full of pseudointellectuals. It's not exactly a shocker, nor is essentially getting O'Connor back on SCOTUS a massive change in direction. Still, this line has been getting a lot of play. So, my analysis.

I didn't think the statement was very controversial, at first. Courts of appeals make policy when they interpret the law a certain way. The problem is, the federal circuit courts are especially constrained in their ability to make both law and policy. Interpretation of the U.S. Constitution, of federal statutes, and of federal regulations, as well as creation of federal common law (yes, it exists; everything you were told about Erie is wrong, ho-hum), is ultimately the responsibility of the Supreme Court. Where statutes are at issue, the Congressional policy expressed in the text of the law is paramount. A judge or justice interpreting that language must defer to the policy judgments of the Congress that passed the law, unless the Constitution requires another outcome. Regulations are created by agencies working under statutory grants of rulemaking authority; the policies both of the Congress that delegated the authority and of the agency that promulgated the rule constrain judicial policymaking. Where, as in the case of federal common law, the law exists only by judicial fiat, there are still special restrictions on what circuit courts can do. The Supreme Court is the ultimate arbiter of federal common law; circuit courts may have to perform work filling out the concrete applications of broad statements of law, but the Supreme Court makes the common law and the Supreme Court can change it. Thus, lower courts are still constrained by the policy judgments of another body.

Where state law provides the rule, federal courts must defer to the interpretation given by the highest court of the state at issue. Because state common law is more extensive than federal common law, state intermediate appellate courts may have substantial scope for implementing policy choices in their decisions. But, because of all the constraints on the work of the federal courts of appeals, their legitimate fabrication of policy is likely to be rather rare. In other words, to the extent that Judge Sotomayor is right, the courts of appeals are probably just usurping the power to set policy that ought to be in some other hands.

No serious person can doubt that courts can and should make law, when it is necessary in the exercise of the judicial power. Nor does any serious person doubt that policy influences the exercise of the judicial power, and must, if just adjudication is to occur. But the federal courts of appeals are the last place we should see policy being made - and thus, by focusing on the policymaking aspects of those courts, Judge Sotomayor simply seems to be drawing attention to a disregard of the federal system. If she can't get worked up about this, perhaps she doesn't understand the limited role of the judiciary in a federal system. And that is a pretty serious flaw in a potential Supreme Court justice.

I've seen some people object "But policy is made in the courts of appeals!" So it is. But, as I've said, the scope for making policy is limited. Imagine if someone were to say "Motion practice is how we keep poor people from winning cases." Could be! But is it a good thing? Is it right? Is it constitutional? Apply these questions to the original statement.

In sum, Judge Sotomayor made a lot less sense when I thought seriously about what she said. But the attitude is familiar - judges should disregard the rule of law in favor of outcome-based adjudication, the consequences be damned. O'Connor's back, baby!