In writing a post at my blog (PoliBlog) I noted the following in a footnote: “yes, there is a difference between legislative actions and judicial ones, but in the end they sum together to make public policy” and it made me think of the following statement by Sonia Sotomayor when she was on the Court of Appeals (from a video of a conference—see here):
“…Court of Appeals is where policy is made, and I know this is on tape and I should never say that because we don’t MAKE law. I know…uhm…ok… I know, I know. I’m not promoting it and I’m not advocating it. I’m…you know…uhm…ok…uhm…”
This was used as an example of her activist bent (for example).
There is no way to look at yesterday’s ruling and not accede to the point that, in fact, the Court (both SCOTUS and the Appeals Courts) make policy.
As a side note, there is an argument to be had as to whether the conservatives on the Court were acting in an activist manner, allegedly something only liberal Justices do, at least according to some. Of course, what all of this likely proves is that the definition of “judicial activism” is “a ruling counter to a particular person’s policy preferences.”
And yes, it is actually far more complicated than that, but I have other things to do. I would underscore, however, that most people really don’t have a operative understanding of the concept and do tend to boil it down to policy preferences.
Cross-posted (with minor modifications) from PoliBlog. Become a fan of PoliBlog (as I do not cross-post everything) on Facebook or follow me on Twitter.