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Do appellate judges make policy? U.S. Supreme Court nominee Sonia Sotomayor was recently criticized for suggesting that they do. During a 2005 event at Duke Law School, Sotomayor – who has served as a Judge for the U.S. Court of Appeals for the Second Circuit since 1998 – pointed out that appellate courts are different from trial courts because that is where “policy is made.”

As Sotomayor’s confirmation hearing begins today in the U.S. Senate, the Judiciary Committee’s 12 Democratic and seven Republican Senators – along with the 31 witnesses called to testify about her qualifications – will surely debate this question of judicial interpretation and whether some judges make law, rather than interpret the law.

Former Utah Chief Justice Dallin H. Oaks found that nifty piece of rhetoric woefully inadequate. “Judges also make law,” he wrote, “1) by interpreting an ambiguity or contradiction in a statute, 2) by gradually giving meaning to deliberately vague terms in statutes by a succession of interpretive decisions, and 3) by declaring the content of the common law.”

The difficulty is compounded when the law to be interpreted is the U.S. Constitution.
The interpretation and application of constitutional tenets presents judges with their most difficult and humbling task, which is why Justice Robert H. Jackson once observed that “We are not final because we are infallible, but we are infallible only because we are final.”

What makes the task so difficult is that the Constitution is filled — “unavoidably” so, Justice Joseph Story wrote in 1816 — with general propositions, such as the promise of “free speech” or a guarantee of “due process of law.” Yet, as Justice Oliver Wendell Holmes observed, “General propositions do not decide concrete cases.”

Even propositions that seem plain enough on their face can cause a judge to “make law” in novel circumstances. Justice Antonin Scalia has given this example in his 1997 book A Matter of Interpretation: Federal Courts and the Law. The case, Smith v. U.S., 508 U.S. 223 (1993), involved a statute that subjected defendants to increased jail time if they “used a firearm” in connection with a drug crime. In this case, Smith had used a firearm, but only as a weight on a scale to measure the amount of drugs being bought. The majority found that the prosecutor’s unique invocation of the statute to seek a longer sentence was consistent with the statute’s authorization for having “used a firearm.” Scalia dissented. He did not believe that Congress contemplated the use of a firearm on a balance beam scale as a counterweight was conduct that merited longer incarceration, only when the gun was used as a weapon. As he wrote in his book, if I describe someone as using a cane, you will assume he used it to assist with walking, not that he has hung it on the wall as a decorative piece. He interpreted the statute applying his own common sense, while the majority chose a more literal approach. He voted to acquit, because the defendant presented an unloaded gun during the drug deal. He was in the minority.

Because application of the statute was a new question, that the courts had not yet resolved, the act of interpretation necessarily made law. That is inevitable for a judge sitting on the Supreme Court. That court does not get easy questions, questions that have been answered time and time again. Instead, it is usually called upon to resolve conflicting interpretations among the lower courts or to decide questions of great national importance. By answering those questions, new law is necessarily made.


  1. Gravatar for Mike Bryant

    Very good information on this very misquoted and abused point. Thanks for getting out the truth.

  2. Gravatar for Mike Ferrara

    Welcome Bob. For those who don't know Bob, he is the guiding force to many state constitutional challenges and has won many major cases. Plus he's a nice guy and this year's recipient of ATLA-NJ's [now NJAJ] Gold Medal for Distinguished Achievement. This is really great news having him on Injury Board.

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