Do Politicians Even Understand What The Judiciary Does?

“Court of appeals is where policy is made.”

Judge Sonia Sotomayor

“Better to remain silent and thought a fool than to speak out and remove all doubt.”

Abraham Lincoln

After hearing all of the complaints over the last few days over Judge Sotomayor’s comment, I can only conclude that our politicians have no idea what the judiciary actually does.

Judge Sotomayor is correct. Whether on the state or federal level, the vast majority of the opinions from appellate courts can be interpreted as making policy. That’s neither a good thing or a bad thing; it’s just a fact. And it’s no surprise to anyone who actually knows what the heck he or she is talking about.

There are essentially two types of laws being addressed by the courts: common law and statutory law. Common law is entirely court made law; it is policy that is developed through series of court decisions rather than through some type of statute. And these aren’t laws out of left field, but laws that govern the every day happenings in this country. Hit by another driver and need to make a claim for damage to your car or injuries you sustained? That’s a tort claim, and in almost every jurisdiction in the country, that tort claim was created through common law. Involved in a business dispute where a business breaches a contract? In most jurisdictions those breach of contract claims are based on the common law and not some type of statute.

When making decisions about common law claims, all courts do is make policy. Causes of action originated from the court decisions, and courts follow the precedent of prior decisions. But if the court is faced with a new problem or issue (a case of first impression), the courts have to make policy judgments on how the claim should be decided.

But courts are also required to make policy decisions when interpreting statutes. When Congress or state legislatures draft statutes they often write statutes that are ambiguous or that don’t cover every situation (or are often unwilling to make the hard decisions) and all of those issues are left to the courts. When those issues are decided, courts often look to the policy implications of their decisions. And everyone expects it. Every day thousands of lawyers across the country — from big firm to small; from lawyers for big corporations to lawyers representing individuals — submit briefs that talk about the policy implications of various decisions.

Not only is consideration of policy concerns in interpreting statutes expected; in many cases it’s required by statute. For example, in Texas, our legislature has created the Code Construction Act (Texas Government Code § 311.001 et seq), which sets out the rules that courts are to use when interpreting statutes. The Act has rules that you might suspect, like words in statutes should be interpreted according to their common meaning. But the statute also recognizes that even if words aren’t ambiguous, Texas courts may also consider policy implications of their decisions. Section 311.023 reads:

STATUTE CONSTRUCTION AIDS.A In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the:

(1)AAobject sought to be attained;

(2)AAcircumstances under which the statute was enacted;

(3)AAlegislative history;

(4)AAcommon law or former statutory provisions, including laws on the same or similar subjects;

(5)AAconsequences of a particular construction;

(6)AAadministrative construction of the statute; and

(7)AAtitle (caption), preamble, and emergency provision.

Moreover, Texas also has Chapter 312 of the Government Code, which sets out rules for construing statutes governing civil causes of action. Section 312.005 states, “In interpreting a statute, a court shall diligently attempt to ascertain legislative intent and shall consider at all times the old law, the evil, and the remedy.” And 312.006 requires, “The Revised Statutes are the law of this state and shall be liberally construed to achieve their purpose and to promote justice.”

When you’re talking about looking at consequences of a particular construction or trying to promote justice, that requires a judge to make a decision about what policy is right and what policy is wrong. Not only are courts of appeals expected to make policy decisions in construing statutes, the courts are required by statute to consider what the policy ramifications of their decisions.

So the next time you hear Senator Hatch or some other politician gripe about Judge Sotomayor contending that appellate judges make policy, ask yourself who is really the fool.

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