Wednesday, May 27, 2009

Court Determined Policy

And what about her remark a while back that “the court of appeals is where policy is made” (see clip here)? She makes an unconvincing little disclaimer after she says that by jokingly adding “I know this is on tape and I should never say that…I’m not promoting it and I’m not advocating it…”, but the rest of the tape makes it clear that she believes the law is something that “develops,” and that appeals court justices help that “development” along. - neo-neocon

It took a lecture on the Rule of Law for me to grasp the difference between a judge that develops the law an activist judge that changes the law. Our system is built on the basis of common law causing the Rule of Law to be soft and malleable. It shifts and changes and "develops" with each decision made by a court, whether it be a district or appellate court.

So is Judge Sotomayor wrong for believing that the law is something that develops? NO. That would be an outrageous claim if you think about it. It is an activist judge, that goes beyond developing the law to changing the law to fit their personal depiction of the way the law should be, ignoring the pretense of established law, the will of the people, that is the problem and endangers the Rule of Law.

While the Rule of Law changes with the progression of time, they must change as a reaction to the change of the people. It is improper to force a change in the Rule of Law in order to force a change in the people.

1 comment:

CBI said...

This is the first blog I've read on the matter to explicate that distinction. I'll have to think on it for a bit.

For me, "development" of the law is more along the lines of applying the law to current situations. Perhaps the best known example: the USC authorizes the Congress to raise and support an army, but makes no provision for an "air force". Since an army requires air power, I think that the USC gives congress the authority to fund such. That it is organized as a separate "air force" in contradistinction with an army and a navy is merely an organizational, not essential, attribute.

The above would be development. OTOH, arguing that, since General Motors manufactures tanks for the army, therefore the federal government has the right to take over and run all of GM: that would be judicial activism.