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Susan Estrich
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Making Law


Don't tell anyone: This is the season when lawyers left and right cross our fingers behind our backs and solemnly swear that judges don't make law. Conservatives insist they adhere to original intent. Liberals insist they do no more than apply the commands of a living Constitution. Everyone recognizes that life experience matters, but no one wants to admit how that could be so, since judges don't make law.

Except, of course, that they do. Every first-year student shaking his or her head about how hard it is has figured that one out. Come expecting to be taught "the law," which you will then know and dispense? Not. For every argument, there is a counterargument. One court goes this way; another goes the opposite way. That's how every section of the casebook is organized. It takes about two months for students to figure out that judges make law, and the next two and a half years to figure out how and why to make the best case for your version of it.

But don't tell anyone that around Supreme Court confirmation time. The current nominee is going to spend at least a few hours of her time before the Senate Judiciary Committee explaining away her comment at Duke a few years ago that the appeals court (as opposed to the trial court) is the place where policy gets made. Of course, that's true: District courts try cases; appeals courts write opinions about the issues of law raised by those cases. Saying that you do more of the "policy" (read: legal interpretation) at the appellate level than at the trial level is stating the very obvious. Of course, no one will say that.

If you have any doubt that it's true, however, consider the very current and important question of when warrantless wiretapping should be allowed for national security reasons, and whether warrants are required for conversations with foreign nationals suspected of terrorism ties, and if warrants are required, under what standards…

Now, consider the provision of the Constitution in which you will find the answers, the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

If you do a little research or have a good memory for American history, you might remember that the colonists were very much opposed to the general warrants issued under the All Writs Act, which allowed the representatives of the hated English tax collectors to search anywhere they wanted for goods subject to customs.

The Fourth Amendment requires that warrants state with particularity what the official is looking for, and that there be probable cause for their issuance, and that unreasonable searches and seizures of people and their houses and possessions aren't allowed.

About wiretapping, of course, the Founders did not say anything, telephones not having been invented. The history of eavesdropping was invoked when the Court was called upon to determine whether the Fourth Amendment protected a guy talking on a pay phone. But I think you'd be hard-pressed, from the right or left, to explain how your stand on warrantless national security wiretapping derives directly from the words I've quoted above.

I'm not taking away from the brilliance of those words, the courage it took to write them and fight for them, or the enduring principles of limited government power and protection of individual privacy that they embody. It's just that it takes judges — judges you may like, judges I may like, judges that those on the left and right may unite to support, as I hope will happen here — to apply those enduring principles to technology our Founders couldn't have dreamed of, in a world facing challenges that couldn't even be described in their terms.

You can call what they do when they're doing that whatever you want — call it a banana, as the recession was called under Jimmy Carter — but it is, in fact, the reason you want people of judgment and experience on the highest Court.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at



11 Comments | Post Comment

When I served on a jury, I had to swear to leave my biases behind. How can a Supreme Court justice profess that her background and the biases she brings with them make her arrive at better judgments?
Comment: #1
Posted by: Lesley Barnard
Fri May 29, 2009 9:27 PM
Game, set, match... great comment Lesley.

Susan, there are two problems in play... I understand your argument about setting policy to a limited degree, but you missed a few key points. 1) Yes, in your example about the 4th amendment, the telephone has not been invented, but that is not the issue, the amendment is about right to privacy, not technology. 2) Of larger concern is the basis of experience being somehow better than a "white man". That is out and out, pure and simple racism.

Definition of racism: "is the belief that race is the primary determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race." If what she said isn't racist, then I certainly don't know what is.

The headline on Yahoo says "Obama: Efforts against Sotomayor twisting her words, will fail." Interesting, her words, and the full video offering their context with her saying them is on YouTube. Sorry, the sky is blue, just look.

Comment: #2
Posted by: Darek
Sat May 30, 2009 12:56 PM
Nomination is in trouble, as it should be. Thank God for the Internet. As Darek says, I can go to YouTube watch the video and listen to her comments. Without the Internet and the availability of information of which we can read, see, and now view, we are at the mercy of so called reporters and their biases (yes, they have them!). I'd much rather come to conclusions based upon the original source and raw materials as opposed to processed info. This capability alone is what is causing so many see through the biases of the once respected newspapers like the New York Times. Obama is fighting a losing battle, you cannot dispute her words, they are there for all to see.
Comment: #3
Posted by: jeff2
Sat May 30, 2009 1:11 PM
Re: Lesley Barnard;... Ma'am; to answer your question; Law is a form of relationship... If law does not work for the people it does not work...It is easy enough to say that the Parlement makes the law, and justice has no part of the work of justices... What foolish bunk is that??? Some one has to judge the law as well as judge the people, and that must be an assortment of people, all with varied experiences of life, even if that means being a woman, or a black, or hispanic...If the Law is made by fossilized white men, and is judged by fossilized white men; what are the chances, realistically, that the fossils will find some flaw in the law???The fact of that matter is that our constitution is not the ten commandments...It was not handed down by God on high...It has already proven itself in many instances to be a failed document, and it has cost us one civil war, and may cost another before it is finally trashed for good and all... If I may offer a simple personal opinion: Not one of those people can see beyond the failure of the form we call law... All of those people have in common the fact that they are millionaires, and often millionaires many times over... They cannot escape the forms we call wealth, and property...Not one of them will ever abondon their familiar forms, or realize that all forms must serve the relationship... The relationship we call America is in desparate agony...It is not healthy...It is barely alive; and yet people hold to the form while the relationship dies around them... This problem is no new problem... Forms have often failed humanity while people clung to them in desparation... Yet; humanity always progresses by changing forms... Jefferson said as much in the declaration in his statement of forms...People hate change, and resist change, but eventually they must change because they cannot change their basic requirements from life... There is your base line... We will change when we must; but some people will never recognize the need for change, and they will never change their forms... I cannot say if Mrs. Sotomayor can see through her forms, but I expect she will see through them better than any white man...Thanks...Sweeney
Comment: #4
Posted by: James A, Sweeney
Sat May 30, 2009 4:27 PM
Re: Darek;...What you say about racism is snonsense, and wrong... For example: I have read anthropology and history by the yard... I have read about Native Americans by the yard, and lived beside them, and worked with many on the iron... Yet, I would not dare tell you, or any native American what it feels like to be a Native American for even a moment...To say I know something about it...To say I can imagine... All this is nothing... We have unique experiences of life which may be superficially similar, but are never the same... One can doubt even how much Mrs. Sotomayor's experiences are like those of other Hispanics, or Peurto Ricans, or Americans, or Women... One thing is certain... How ever disimilar her experience has been compared to others like her, they are heads and tails above what those white men on the court have experienced... There is some point where people must know, and no longer imagine.... We really cannot know what it is to suffer injustice, discrimination, or injury by the failure of law unless we have been there, and then the experience is everything but hypothetical... As one English Jurist said: There are no imaginary cases... The more real has been the experience of the judge, the less inclined he is to suffer fools or foolishness in silence... Now, understand; our court is not representative... The ancient Greek Supreme Court had one member for ever two hundred and fifty citizens... And here we are like so many geese running down this woman because she is representative... When did that become a disqualification??? Are we afraid some one will fix the law???That is like Carlin's comment about why they lock rest room doors...Are they afraid some one will clean them??? The thing could not get more worser...The only arguement is between thems that wants more medicine, and those who want more illness...No one likes the situation as it stands...So something has to give...Thanks...Sweeney
Comment: #5
Posted by: James A, Sweeney
Sat May 30, 2009 4:48 PM
We are all products of our environment. If a person's environment includes a top-grade education and years of judicial experience, it would make her more qualified to be on the Supreme Court than most of her detractors.
Comment: #6
Posted by: Paul M. Petkovsek
Sun May 31, 2009 7:19 AM
>> What you say about racism is snonsense, and wrong... << The definition was taken from the dictionary. >> Regarding native American's << My relatives are native American's. Actually, so am I, I was born here! Don't lose sight of the fact that the legislature sets the law (i.e., policy!!!!) not judges, judges apply it. Much of the argument I see is wrapped up in emotion, and facts. Law is about facts. (I have several relatives from Boston, believe me, I have witnessed first hand many liberal arguments founded in emotion, not facts. As an engineer it's easy for me, but for many this in not.) 2+2 = 4 no matter how badly one feels is should be 5.
Comment: #7
Posted by: Darek
Sun May 31, 2009 8:54 AM
James: >>When did that become a disqualification???<< When she doesn't understand the role of judges, and says racist things. Like I said about Lesley's comment "Game, set, match... great comment." It's really not that complicated.
Comment: #8
Posted by: Darek
Sun May 31, 2009 8:58 AM
Definition of racism "a belief that race is the primary determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race" (Merriam-Webster Sotomayor's comment "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life".
Comment: #9
Posted by: Darek
Sun May 31, 2009 9:14 AM
Much ado about nothing.
Sotomayor said she "would hope..." So if we want to argue over this one sentence we should note that "hope" does not equal "strongly believe". End of story. Le's move on. Do Republicans/conservatives really want to risk alienating Latinos over this clearly qualified nominee for the SC?
Comment: #10
Posted by: cadbury
Sun May 31, 2009 2:07 PM
I was under the impression that the legislative branch made the laws and that if a law was needed that branch of government was tasked with that responsibility. Our judges were to insure that the laws fell within the body of the written laws. The judicial branch was to be the weakest of the three branches due to the concept of "rule by the people". After 7 years at university (including 2 graduate years at USC) my fear is that as I become "more educated" the more egotistical and "self important I've become. I'm afraid that the judiciary has far exceeded the bounds of reasonable egos. An active judicial system frightens me. A cabal of liberal trained activists jurist terrifies me. A group of students accepted to these institutions of learning based on "affirmative action" programs is downright dangerous. I propose we honor the intent of the Constitution by insisting that the Legislature (through the people) make the laws or amend the Constitution if required and keep the judges away from usurping power from the people. I propose that the judiciary keep their "blindfolds" on and leave the their life stories to the social workers and daytime television.
Comment: #11
Posted by: bill
Mon Jun 1, 2009 10:49 AM
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