"where policy is made"

Tue Jun 2 06:43:33 PDT 2009

Steve:
[Unfortunately my post did not make it to lawcourts, and I see Doug Edlin must have had substantial reponse there.] 
I don't think we are really disagreeing.  If what we mean by policy is simply interpretation, and  that interpretation has political consequences, then there is no doubt that judges make policy, and I can't imagine that anyone would object to describing things that way.  But if by policy we mean making decisions based on political preferences -- and that I think is what most people think of when they think of policy -- then it is inherently interesting to hear a judge talk about making policy.  Again, this may be simply a matter of defining terms, and if policy means simply interpretation, then that's the way it is; but the dictionaries I have consulted all speak of making deliberate choices, setting a course of action.  I am thinking here, for instance, of the conclusion of Stevens' opinion in Raich, where he explicitly eschews policy-making, it seems to me.
Your earlier post mentioned the problematic use of buzz words like "judicial activism" that are really cover for something else; I agree with you on that, and I don't think the pharase has advanced the public debate on the proper role of the court, as it has obscured rather than clarified.
I am not a critic of the Judge; I am a committed agnostic, as I would be for almost anyone who has served on a lower court for so long (see Alito).  Fortunately, I don't have to vote on her confirmation, which leaves me free to praise or blame her and her defenders and critics without having to take a position. :)Richard Dougherty
-----Original Message-----
From: "Steven Jamar" <stevenjamar at gmail.com>
Sent 6/2/2009 6:03:44 AM
To: 
Cc: "CONLAWPROFS professors" <Conlawprof at lists.ucla.edu>
Subject: Re: "where policy is made"
Does ANYONE, even her most strident critiques grasping at this "policy" straw, really believe that she believes the courts should do more than decide cases based on the law?  Some may willfully or ignorantly misapprehend the role of judges and the courts and the problems of interpretation, but all judges apply the law, including statutes, precedent, and the Constitution all the time.  Sometimes the judges must determine meaning from contested readings of uncertain applicability to a particular situation and use policy and analogy in their reasoning.  Surely Scalia is making policy, or trying to make policy, whenever he adopts a particular mode of interpretation -- he may think it the right one, but it clearly is a policy decision.  And a political one.  And favoring states over the federal government is obviously a policy.  And so on.The laughter was because the word is charged and will be twisted and distorted and we can either laugh at the foibles of our system that does this or we can be humorless didacts about it and earnestly try to stop the tides.The use of policy should be forthrightly defended and those who object should be the ones to explain their meaning and to prove that their closed meaning is the one meant by others who use the word in the non-special-coded sense.This should not be interesting except as a vehicle to examine her critics.SteveOn Jun 2, 2009, at 2:05 AM, Richard Dougherty wrote:I certainly agree that there are various meanings given to policy-making, but I would not call them semantic games.  I think when most people hear "policy-making" they think of making political judgments about desired outcomes -- should there be a tax hike, should the government bail out or close GM, should we allow 20-year olds the right to drink, etc.  Many (most?) people think that policies like that are made by elected officials, but if the Judge is broadcasting -- truthfully, perhaps -- that that is not the case, then it's interesting.  If we mean by policy making giving an interpretation of any given statute, of course that is done by the judge, and I applaud Judge Sotomayor for her candor.  But she clearly understood how awkward it was to say openly what she did say, so I guess I am wondering why she thought it necessary to say that she didn't really mean that, etc.  If all she meant was that judges decide cases before them, I can't imagine what the problem would be.  And as Mark Scarberry says in a subsequent post, I don't find the quote troubling -- but it is interesting.Richard Dougherty
-----Original Message-----
From: "Steven Jamar" <stevenjamar at gmail.com>
Sent 6/1/2009 10:01:40 PM
To: "CONLAWPROFS professors" <Conlawprof at lists.ucla.edu>
Subject: Re: "where policy is made"
How can a court not make "policy"?  As Sean Wilson pointed out, the term "policy" has various meanings, many of which are context-tied.  Those who argue that "interpretating" or "applying" are different from "making" have a point at the polar meanings of the words, but there are vast areas of overlap, of course.It, like "activist judges," is more a shibboleth used as a placeholder for something else (I think probably typically disagreement with the substance of the decision), than a term intended as a substantive criticism of the necessary decision-making processes of judges required to interpret law. Steve JamarOn Mon, Jun 1, 2009 at 10:37 PM, Richard Dougherty <doughr at udallas.edu> wrote:I think the fact that Judge Sotomayor elicited nervous laughter from the audience, and made the side comment about knowing that she shouldn't be saying it, is illuminating -- though it may only illuminate the question raised here about why this is still a matter of interest.  I doubt anyone doubts whether courts make policy; I would guess that many doubt whether they should.Richard Dougherty
-- 
Prof. Steven Jamar
Howard University School of Law
Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc._______________________________________________
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Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.-- Prof. Steven D. Jamar                     vox:  202-806-8017Associate Director, Institute of Intellectual Property and Social Justice http://iipsj.orgHoward University School of Law           fax:  202-806-8567http://iipsj.com/SDJ/Hope is not the conviction that something will turn out well, but the certainty that something makes sense regardless of how it turns out.-- Vaclav Havel._______________________________________________
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