"The Court of Appeals is where policy is made"?

[Rucksinator]

Note: This is not about Sotomayor's opinions, qualifications, or intentions. Pretend that it was somebody else who said it.

I'm in a debate with my brother, and he posted this:

..........during a presentation at Duke University in February 2005. Sotomayor was one of three judges who participated in a panel discussion for law students thinking about applying to be judicial law clerks.

Sotomayor was asked about the differences between clerking for judges in the federal district courts as opposed to those in federal appeals court.

"The Court of Appeals is where policy is made," said Sotomayor, a federal judge on the U.S. Court of Appeals for the Second Circuit. "And I know this is on tape and I should never say that because we don't make law. I know…I know. (some laughs) I'm not promoting it. I'm not advocating it. I'm…you know. OK. (more laughs)

"Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating. It's interpretation. It's application."


My interpretation of this was that there was an acknowledgement (based on laughter coming from the crowd) that, for whatever reason, there was a tendency for policy to be made in the Court of Appeals. Is this the case? If so, what is the reason for this?

Again, I don't want this to be a debate about Sotomayor. I actually considered putting this in GQ, but I didn't think that it qualified, since I anticipate different opinions about what happens in CoA. I don't want to debate whether this is right or not, but to know if it happens, and why.

Thanks

[Marley23]

I know how the search function is here, but a more complete quote has been posted a few times. I'll see if I can dig it up.

[Rucksinator]

I did attempt to search for this subject, and didn't find anything recent. I did not, however, read through every Sotomayor thread to see if the subject had been discussed.

[Huerta88]

My interpretation of this was that there was an acknowledgement (based on laughter coming from the crowd) that, for whatever reason, there was a tendency for policy to be made in the Court of Appeals. Is this the case? If so, what is the reason for this?


The laughter, and her nervousness, was because as an orthodox matter of the division of power under the Constitution, "policy" is to be made only or principally by the Legislature and to a lesser extent the Executive, with the Judiciary being a neutral enforcer of the policies set by others. Sotomayor was acknowledging the reality that sometimes the appellate courts (which have little effective check on them, since judges have life tenure and since the Supreme Court can only review a handful of cases a year) have the opportunity to, and in some cases do, enter rulings that have the effect of enforcing a particular judge or judges' personal policy preferences. It's a sensitive area for a liberal jurist to talk about, because "making policy from the bench" is an epithet that conservatives have been hurling, and liberals denying, claiming they're "only applying the policies enacted by the Legislature," for years.

[Bearflag70]

Let's say you think someone has done you a civil wrong and has caused you some kind of harm, but the legislature has never written a specific statute that says "X is wrong and if someone has done X to you, then you can sue for it and recover some kind of remedy." After all, the legislature can't possible write a statute defining every single thing that can go wrong in the world.

So, you go to court, and the defendant says, "You shouldn't be able to sue for X."

The trial court has to render some kind of decision. One side wins and the other side loses, but trial court decisions don't make binding precedent of law. The loser takes the case to the appellate court.

The appellate court must weigh the various laws, prior cases, legislative intent, public policies, etc. that seem to relate to the case at hand and must use its discretion in trying to determine whether a party really can sue someone for X as a matter of law.

The appellate court makes a decision, writes it down, and publishes it. The opinion is now binding precedent and the lower courts must follow it. In a sense, the appellate court has just "made policy" about whether that jurisdiction will recognize X as a valid private cause of action with a remedy.

The same holds true for pretty much any ambiguity in the law. The appellate courts must "make policy" to fill in the "gaps" or ambiguities in the law that are not clearly defined by statute or prior case precedent.

However, the courts don't like to think of it in terms of "making policy" because that's supposed to be the realm of the legislature. The courts like to think of it as "discovering the law" as if the law somehow already existed but was previously unknown and the judges had to "discover" it so they could apply it to the case at hand and declare it to the public to use in future similar cases.

[Whack-a-Mole]

In the Smooth Sailing for Sotomayor (http://boards.straightdope.com/sdmb/showthread.php?p=11182672) thread Richard Parker made a good post on this topic (more than I am quoting here which is just a bit of it).

Impact litigation focuses on getting into appellate courts, and that tends to be where the real battles lie, because the effect of a win in the district court doesn't have the kind of impact that an appellate court has. Additionally, anything that is in a gray enough area of law to be good fodder for impact litigation will almost inevitably be decided by an appellate court. By virtue of working with more complicated, less settled issues, appellate courts also have to employ more subjective judgment. They have less precedent to rely on. They make law in a very real sense, and that law usually has important policy consequences. In that sense, they make policy.

[Cliffy]

Yeah, I don't find this a particularly controversial claim, although as Heurta says, the theoretical fiction is that policy is made by legislatures. Although I don't necessarily agree with him (her?) that this is because of failures in the system, corruption, or judicial activism. It's just because appellate courts, unlike district courts, are being asked to opine on novel issues, usually without further review, in ways that are precedent-setting. District courts work with a net; appellate courts do not.

--Cliffy

[DSYoungEsq]

The issue that some have with a statement such as Judge Sotomayor made is that they believe somehow that the courts, in determining the application of law to facts, never are engaged in having to decide between competing interpretations, each nominally reasonable, of the written law, or the common law. This is absolute nonsense, of course. Courts face that sort of situation all the time. Take, for example, debate over application of the First Amendment's clauses precluding establishment of a state religion, and guaranteeing free exercise of religion. The precise meaning of those words simply does not exist. Yet in deciding which interpretations to apply, the courts make policy, whether we will it or not.

But, of course, the current cry of the political right against courts that make law comes out of the shadow of the very activist approach of the federal bench during the 50s, 60s and 70s, when, in fact, that is exactly what the courts often did. Miranda is a classic example of court-made law. It didn't come from some statute passed by Congress, or some executive order issued by the President. It wasn't something that was passed by state legislatures and was being enforced by the Supreme Court. It comes whole cloth out of the imagination of the liberal wing of the Supreme Court of the United States. To protect the citizens of the country, the Court established a procedure that police were REQUIRED to follow thereafter, if they wished to avoid having evidence thrown out during trial.

Now we can argue whether or not Miranda was a good idea. We can argue whether or not it has been effective. But what cannot be argued is that it was policy-making of the highest order, imposed upon a nation by what were at the time nine old white men. So the distaste for judicial legislation is understandable, even if it is over-broadly used to tar the decisions of the federal courts.

[Bryan Ekers]

Well, the legislature has the appropriate remedy - rewrite the law so whatever novel exception the appellate court found can be blunted, if the exception is really so offensive to them.

[Rucksinator]

Well, the legislature has the appropriate remedy - rewrite the law so whatever novel exception the appellate court found can be blunted, if the exception is really so offensive to them.

OK, how would that work? If the court (not necessarily appellate, I suppose?) made a ruling, and the legislature decided to pass a law specifically opposing that ruling? Would we have to wait for a case to be brought forth for a decision to come down?

Also, is the recent Prop 8 situation in California a good example of this situation?

[Rumor_Watkins]

OK, how would that work? If the court (not necessarily appellate, I suppose?) made a ruling, and the legislature decided to pass a law specifically opposing that ruling? Would we have to wait for a case to be brought forth for a decision to come down?

Also, is the recent Prop 8 situation in California a good example of this situation?

No, the lower courts would recognize the primacy of the superseding legislation. Unless the court decision rested on constitutional grounds, then you'd probably find yourself back in court arguing the constitutionality of the superseding legislation.

[Bearflag70]

OK, how would that work? If the court (not necessarily appellate, I suppose?) made a ruling, and the legislature decided to pass a law specifically opposing that ruling? Would we have to wait for a case to be brought forth for a decision to come down?

Also, is the recent Prop 8 situation in California a good example of this situation?

I can think of one simplified example off hand. The basic issue in front of the court was whether an unlicensed contractor should get paid for work done on someone's house. The statutes required a person making a claim to get paid as a contractor to allege the existence of a contractor license.

Looking at the gaps in the contractor licensing statutes, the appellate court made a ruling, establishing a new policy, that an unlicensed contractor can get paid for work properly done if the contractor was in "substantial compliance" with the state contractor law requiring a license. This became known as the "substantial compliance doctrine." The legislature came back and passed a statue saying essentially, "the substantial compliance doctrine shall not apply under this section."

That statute gutted the judicial policy for all future cases. When the issue came before the courts in another case, the court had to follow the new statute and deny payment to an unlicensed contractor for work done regardless of any "substantial compliance" with licensing law. The legislature trumped the court.

Prop. 8 is similar in that the California Supreme Court interpreted the state constitution to recognize same sex marriage as a constitutional right. The people of California did not agree with the court, so they passed an initiative (Prop. 8) to amend the state constitution to deny same sex marriage. The California Supreme Court recently declared Prop. 8 is indeed a valid initiative. So the Court had to follow the newly amended state constitution and gave a new judicial opinion saying that, as a result of Prop. 8, same sex couples cannot use the term "marriage" to describe their unions. In sum, the voters trumped the court.

[MichaelQReilly]

Let's say you think someone has done you a civil wrong and has caused you some kind of harm, but the legislature has never written a specific statute that says "X is wrong and if someone has done X to you, then you can sue for it and recover some kind of remedy." After all, the legislature can't possible write a statute defining every single thing that can go wrong in the world.

So, you go to court, and the defendant says, "You shouldn't be able to sue for X."

The trial court has to render some kind of decision. One side wins and the other side loses, but trial court decisions don't make binding precedent of law. The loser takes the case to the appellate court.

The appellate court must weigh the various laws, prior cases, legislative intent, public policies, etc. that seem to relate to the case at hand and must use its discretion in trying to determine whether a party really can sue someone for X as a matter of law.

The appellate court makes a decision, writes it down, and publishes it. The opinion is now binding precedent and the lower courts must follow it. In a sense, the appellate court has just "made policy" about whether that jurisdiction will recognize X as a valid private cause of action with a remedy.

The same holds true for pretty much any ambiguity in the law. The appellate courts must "make policy" to fill in the "gaps" or ambiguities in the law that are not clearly defined by statute or prior case precedent.

However, the courts don't like to think of it in terms of "making policy" because that's supposed to be the realm of the legislature. The courts like to think of it as "discovering the law" as if the law somehow already existed but was previously unknown and the judges had to "discover" it so they could apply it to the case at hand and declare it to the public to use in future similar cases.

This is it, more or less. A case goes high up the appeals chain precisely because it raises a sticky issue that the law doesn't adequately address. Therefore any decision is going to inevitably involve some kind of policy determination.

[MichaelQReilly]

OK, how would that work? If the court (not necessarily appellate, I suppose?) made a ruling, and the legislature decided to pass a law specifically opposing that ruling? Would we have to wait for a case to be brought forth for a decision to come down?


This kind of thing happens at the state level all the time. The State Supreme Court issues a ruling that the legislature dislikes and they change the law. As long as the law is clearly within the state's powers, there really isn't an issue of court review (that isn't to say that the courts won't play games interpreting the law).

It becomes harder at the Federal Circuit level when they are interpreting a federal law that will apply to a group of states. The only way that circuit's ruling can be overturned is by the Supremes or by Congress, which is understandably much more difficult than cases involving state law.

[Cliffy]

the Court established a procedure that police were REQUIRED to follow thereafter, if they wished to avoid having evidence thrown out during trial.

Quibble not germane to the discussion at hand. (They didn't say you had to do this; they said you had to do something, and this would suffice, but you could come up with something else if it was at least this good.) But of course I agree with your general point that the Warren Court was a policymaking Court. As is the Rehnquist/Roberts Court.

Also, is the recent Prop 8 situation in California a good example of this situation?

Yeah, that's an excellent example. It's not exactly the same thing because it was an issue of the state constitution instead of just the Food and Beverage Control Act or whatever. And of course there the "will of the people" was established through a referedum process which was deeply flawed and stupid (which is why California is on the verge of bankruptcy, but that's another thread) instead of through the state legislature. But from the high-level view, the process was the same -- the relevant text had multiple possible interpretations; the court chose one; the polity said "No, we meant the other one," and the court complied.

This is an important piece of the puzzle -- courts make policy in the absence of clear statements from the legislature. But courts also have to do what the legislature tells them to do (so long as the legislature had the legal power to act as it did). If the legislature doesn't like the way the courts have read a statute, they can just change it and the courts will change the outcomes of future cases accordingly. That's a bit glib because of course American legislatures are full of all sorts of roadblacks and bottlenecks to make it affirmatively difficult to pass legislation. But it for exactly this reason that courts are often in the position of making the policy; because a case arises in which a decision must be made, and the legislature has left the question open.

--Cliffy

[Fotheringay-Phipps]

It's not nearly as simple as you guys are making it. Because there's a lot of room for creating "ambiguity" in laws when there really isn't any. And this is especially so if you create "contradictions" between laws based on overarching assertions about the general intentions of one or both of these laws.

The way it works is generally something like this. "Law A ostensibly seems to say X. But as written, it would contradict the principles of Law B. Because Law B is designed to maximize Y outcome, and X would have a negative effect on Y. Therefore we conclude that the only way to interpret Law A is in a manner that does not have a negative effect on Y, and it does not actually say X ...".

In sum, where genuine ambiguity in the law exists, courts properly fill in the blanks, but this is something that lends itself to abuse by judges who prefer to legislate their own priorities.

[The above is not intended to suggest that Judge Sotomayer is one of the abusers.]

[Acsenray]

The U.S. legal system is a common law system, and this is exactly how the common law system works. Judges make law by applying legal principles, precedent, and their own reasoning that have developed over time. Statutes enacted by the legislature trump common law, but statutes are the exception in the common law system, not the rule.

[Marley23]

In the Smooth Sailing for Sotomayor (http://boards.straightdope.com/sdmb/showthread.php?p=11182672) thread Richard Parker made a good post on this topic (more than I am quoting here which is just a bit of it).
This is the post I had in mind. My apologies for forgetting about this thread.

[Cliffy]

It's not nearly as simple as you guys are making it.

Incredibly complex topic simplified on Internet message board shocker!

--Cliffy

[DSYoungEsq]

The U.S. legal system is a common law system, and this is exactly how the common law system works. Judges make law by applying legal principles, precedent, and their own reasoning that have developed over time. Statutes enacted by the legislature trump common law, but statutes are the exception in the common law system, not the rule.

Except that the United States, and the states therein, have long since modified their approach so that they are increasingly NOT common law systems. Virtually everything anymore is governed by statute, including crimes, torts, property law, etc. While there are common law principles that we still apply, many of those are enshrined in the law through statutes.

Off the top of my head, the last truly "common law" change to some important area of the law was the determination by the California Supreme Court in 1969 (?) in Li v. Yellow Cab that henceforth, despite the statutory abandonment of the contributory negligence defence, comparative negligence principles would be applied to determine actual damage liabilities in tort cases. Perhaps there is something more recent of similar scope, though I'm not thinking of it right now.

And federal common law is almost non-existant anyway, since the federal courts don't have jurisdiction over many typical common law areas. Since the appellate courts under discussion here are federal, the chance that the "policy" being made is being made as part of a "common law" approach to some legal subject is vanishingly small.

[Acsenray]

You know very well that statutory law is not uniformly clear in this respect. Often -- except in situations in which a statute has been explicitly written to overturn common law -- it is not crystal clear what a statute means in a specific factual context. Our statutory system has developed as an overlay to common law. As a result, the mechanics are the same, only that trump cards are slightly more frequent. As other posts have pointed out, a federal appeals court often has no choice but to apply traditional common law principles even when there is a statute explicitly addressing an issue.

[DSYoungEsq]

With respect, that's mainly rationalizing nonsense, sir. I ask you to point to any decision of the Supreme Court this year in which "common law" was truly involved in reaching the decision the Court made. And even if you can find one, I defy you to find any significant percentage of such decisions. It is simply untrue that federal law has any remaining significant relationship to ye olde English common law. The odd case, yeah, especially if someone who is a believer in interpreting the Constitution according to the meaning it had in 1789 is trying to parse some language from that document. Other than that, nope.

[Acsenray]

With respect, your sarcastic "sirs" are unwelcome. Every damn thing that an American court does that is not simply the literal application of the actual words of a statute is an act of applying common law. Every time the facts of a case present a question that cannot be answered by simply looking at the plain language of a statute, a court can do nothing but apply common law principles. By doing this, a court is making law and making policy in the same way that common law courts have always done. It is a rare situation in which a written opinion of a court does nothing but apply a statute without some act of common law jurisprudence. By definition, if that's all it were doing, no written opinion would be needed. Every time a court bothers to cite a prior decision, that's an act of common law. And, indeed, the legislature, by writing statutes that are capable of multiple understandings, intends for a court to do exactly that. The idea that American courts do not make law or are not supposed to make law is what is errant nonsense. A court, particularly an appeals court, cannot function in our system without making law.

[DSYoungEsq]

You seem to be of the opinion, then, sir, that countries based on code law, not common law, don't have to interpret the meaning of the codes they follow. This is incorrect. Most decidedly incorrect. Thus, the act of interpreting a statute is not a function of being a "common law" court, but rather the function of having to deal with an imprecise language.

A "common law" court does more than interpret statutes. A common law court actually makes law. When a situation is presented to it that has been presented to it in the past, where no specific statute directly addresses the issues, it refers back to what has been decided in like cases and applies the principles it thinks have been developed. If a situation is presented that is novel, or one for which the prior solutions have (in the court's opinion) been ineffective, it comes up with some principle for dealing with the situation, and applies that to the case in front of it. After that has happened several times, there evolves some principle for dealing with such cases, which principle can then be said to be the "common law" of the land.

Miranda, for example, is federal common law. The decision in the case was not mandated by the Constitution. But the Court decided that some principle had to be put into place to deal with situations of like nature. Yet, the decision in Miranda has been roundly criticized precisely for this fact. Indeed, it is questionable that it will survive much longer as a viable rule of constitutional law, though it may be the case that various states and the Congress may codify it. The common law nature of the case makes it entirely radical for a decision from the federal judiciary.

But, by contrast, the Court routinely has to deal with application of very intricately written statutes on things like banking law. There were a whole series of decisions at one point addressing ambiguities in the ERISA. Now ERISA is a pretty thorough piece of legislation. Very intricate. But there were a number of issues that had to be resolved. Do you think that, in code countries, a court presented with a statute that is potentially ambiguous simply throws up its hands and says, "I can't figure out what this means, so I'm not going to try?" So interpreting what ERISA means isn't the act of a "common law" court.

Now, you assert that simply because federal courts adhere to the principle of stare decisis that they remain common law as opposed to civil law courts. I assert that this is only facially true: jurisprudence constante is much the same as stare decisis, and, indeed, is closer in some respects to true common law principles (a group of cases over time decide how to apply a law) than stare decisis (the decision of one single case makes that determination). So applying stare decisis is not alone sufficient to claim that my assertion (which I repeat here since it appears that you may not remember what I said exactly) that, "Except that the United States, and the states therein, have long since modified their approach so that they are increasingly NOT common law systems. Virtually everything anymore is governed by statute, including crimes, torts, property law, etc. While there are common law principles that we still apply, many of those are enshrined in the law through statutes" is wrong.

Finally, you should re-read my original post in the series that lead up to this exchange. I said,The issue that some have with a statement such as Judge Sotomayor made is that they believe somehow that the courts, in determining the application of law to facts, never are engaged in having to decide between competing interpretations, each nominally reasonable, of the written law, or the common law. This is absolute nonsense, of course. Courts face that sort of situation all the time. Take, for example, debate over application of the First Amendment's clauses precluding establishment of a state religion, and guaranteeing free exercise of religion. The precise meaning of those words simply does not exist. Yet in deciding which interpretations to apply, the courts make policy, whether we will it or not.So I'm not so clear as to exactly why you insist upon maintaining the untenable postion: THE COURTS ARE COMMON LAW COURTS AND THUS MAKE LAW WHEN DECDING THINGS. The last two sentences of your most recent post,

"The idea that American courts do not make law or are not supposed to make law is what is errant nonsense. A court, particularly an appeals court, cannot function in our system without making law."

do not require that they be truly "common law" courts.

[Acsenray]

I know next to nothing about civil law jurisdictions, and I make no comment about them. The fact remains, regardless of how much statutory law is overlaid over a common law system, it remains a common law system, its assumptions, its procedures, its approaches. Statutory law has always been integrated into our common law system, and our courts address statutes as common law court always have. And this addressing necessarily results in judge-made law.

[Cliffy]

Having skimmed the exchange, it seems to me you're not disagreeing substantively, but one of you is taking an idealist position and the other a realist position. Perhaps you should retire to neutral corners.

--Cliffy