The Coming Battle on Judicial Review: Understanding Article III

Judge Sotomayor’s remarks on policy-making at the appellate level – which the learned and agenda-free among us know to be entirely correct and uncontroversial – are likely to ignite whatever firestorm the far-right can muster in this, the proverbial winter of their discontent. We suggest you brace yourselves — starting here. Consider this article the first in a series designed to immunize you from the more mundane right-wing talking points that we all expect to come up in the next few weeks (“durn act’vist judges!”). We’ll start with a basic question: can a federal judge ever permissibly “make policy,” as Judge Sotomayor said, that fateful day?

First, let’s define our terms. No judge claims, and no partisan defends, a judicial right to promulgate substantive policy, as in, full-fledged statutes setting out rights along with remedies.* Not would this idea be patently absurd, and shake the separation of powers to its core, but there’s simply no vehicle for it. Only Congress gets to write in the U.S. Code books. So when people talk about “judge-made law,” and judges making “policy,” they must mean something else. What, then, do they mean?

In resolving discrete “cases” and “controversies,” per their constitutional powers,*  judges will often have to draw specific rules from vague congressional enactments that will often admit of multiple meanings. This is the task of judging, and it’s not always controversial, in the political sense of the word. For example, few will begrudge a federal judge the right to decide whether a particular form of insider trading counts as a “manipulative or deceptive device or contrivance,” within the meaning of the Exchange Act.* Federal judges, and especially appellate judges,* must be able to perform this sort of task if the law is to function: they can’t punt every question of statutory interpretation to Congress.

Just so, judges must be able to perform the more difficult and controversial task of constitutional interpretation. Contrary to popular myth, the Constitution is not self-interpreting: phrases like “equal protection of the laws” admit of multiple meanings,* and while history and the document itself both often leave hints, there are no clear or easy answers.* These are the types of questions, again, that the federal bench was undoubtedly meant to answer.*

Thus, before a judge can apply the law to the facts, she must know what the law is, and state it clearly. Because the legal principles expounded in the process of resolving a case will often matter more than the simple result of the case,* the bystander’s eye is drawn to the law, and one forgets that the enunciating of law is necessary, but wholly incidental to the process of resolving individual cases. If we don’t know what we’re watching, or aren’t aware of the limits that govern the process,* we may be tricked into thinking a judge has just “made policy,” when she’s simply done what was necessary to resolve a case.

And so we return to Judge Sotomayor, to see that she was quite right: appellate courts do sometimes make policy, and there’s nothing either novel or scary about that. To be sure, some judges may overstep their bounds, by stating the law over-expansively, improperly, or “without invitation.” Perhaps we should worry about that. But the proper question for her confirmation hearing, then, isn’t whether Judge Sotomayor “makes policy” – which is to say, “does her job as an appellate judge” – but whether she does it well.

Tell your friends.

  1. Although, until recently, judges did routinely “fill gaps” in congressional statutes, like statutes of limitations, but nothing even so controversial as a “notice of claim” rule!  See, e.g., Felder v. Casey, 487 U.S. 131 (1988).  Congress has since reclaimed even that small power from the federal bench.  See 28 USC § 1658 (2008) (defining a four-year statute of limitations for acts passed after 1990 that do not specify otherwise).  And in special cases, federal courts will imply remedial vehicles, either to execute otherwise unenforceable constitutional rights, on the premise that the Constitution presumes a statutory scheme, see Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), or to otherwise more faithfully execute Acts of Congress.  See J. I. Case Co. v. Borak, 377 U.S. 426 (1964) (implying, quite uncontroversially, a private right of action to redress violations of § 10(b) of the Exchange Act, under SEC Rule 10b-5.).
  2. See U.S. Const, Art. III.
  3. I’m referring to U.S. v. O’Hagan, 521 U.S. 642 (1997), in which the Supreme Court expanded its definition of “insider trading” to include the misappropriation of a third party’s information.
  4. An appellate judge is either one who sits on a circuit court of appeals (e.g. “Fifth Circuit”), or a Supreme Court justice. Parties have recourse to appellate judges, in that order, after a trial at the district court level. Federal district judges deal mostly with the facts, and generally defer to existing law as stated by appellate judges, and appellate judges generally treat the facts of the case as “frozen” at the district level.
  5. U.S. Const, amd. XIV.
  6. As an example, take the facts of Loving v. Virginia, 399 U.S. 1 (1967), where the plaintiffs, a mixed-race couple, sued for the right to marry. At the time, Virginia did not permit mixed-race couples to marry: only a white man could marry a white woman, only a black man could marry a black woman, etc. Technically, as noxious as that rule is, it’s “equal”: it applies equally to both blacks and whites, limiting both to their own races only. So is it constitutional? Does that rule give “equal protection of the laws”? Even if the rule against mixed-race marriage has a kind of equality to it, your intuition should tell you that that’s not real equality. But what kind of equality does the Fourteenth Amendment require? You need a judge to answer that question.
  7. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”).  See also, e.g., Legal Serv. Corp. v. Velazquez, 531 U.S. 533, 545 (2001) (“Interpretation of the law and the Constitution is the primary mission of the judiciary when it acts within the sphere of its authority to resolve a case or controversy”).
  8. Where’s John Geddes Lawrence today? Who cares! What’s important to me as a citizen is that, because of him, I know the state can’t jail me if I happen to be gay. See Lawrence v. Texas, 539 U.S. 559 (2003).
  9. For example, while Congress can make law whenever it wants, a federal judge may only expound law when a “case” or “controversy” properly presents the question.  See U.S. Const., Art. III; see generally Frothingham v. Mellon, 262 U.S. 447 (1923) (explaining the principle of “standing,” that judges may not decide public law unless a private party properly presents the question).


  1. What gets me about the “makes policy” stink is this – right now policy is being made on Captiol Hill by Senate and House staffers who ar ein their early 20’s and fresh from college and grad school. They may well be schooled in the best political science, law, economics, and occassionally history (and even a real sceince or two), but they have no where the experience, or the academic credentials of Judge Sotomayor. Yet no one questions their necessiaty or effectiveness.

  2. Regardless of who is in power, I am always most wary of abuses by the executive than the judiciary. The courts may state “the law over-expansively, improperly, or ‘without invitation,'” but by its very nature, the judiciary will always be reactionary, which limits the scope of its potential abuses.ikkkkkkkkkkkkkkkkkk

  3. Please excuse my cat’s interjection at the end of my last post.

  4. LOL! How did I know that was a cat’s input?

  5. James F · ·

    Kris, you might need PawSense.

  6. […] to a Candid World has two excellent posts on judicial activism in which ACG explains the history of some supreme court […]

  7. […] any event, in previous articles, we’ve explained the centrality of judicial review to the American system of government, analyzed the historical value of “judicial […]

  8. […] the federal courts can generate new ideas – is the Prime Evil of progressive politics. Upon closer inspection though, we realize that conservatives really only view it as a problem in two cases: […]

%d bloggers like this: