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Thursday, October 08, 2009

What I Would Have Said…. Reflections on Sotomayor’s Confirmation Hearings

Eric below has a provocative post on the Sotomayor Confirmation hearings.  Here’s a snippet:

Sotomayor repeated the same refrain over and over – so much so as to cement it into the public consciousness: “The task of a judge is not to make law. It is to apply the law.”  The problem with that statement is that, at best, it is an eighth-grade understanding of the American court system.  If one of my law students wrote that on a final exam, I would probably beat my head into my desk . . .

It is no defense to say that Sotomayor was simplifying things.  Sotomayor’s statements were oversimplified to the point of being wrong.  More importantly, the Sotomayor hearings focused the country’s attention on jurisprudence and the role of judges.  It was a chance for the American public to do some considered reflection on the courts and our legal system.

I can't criticize Justice Sotomayor for saying what she said.  And I am no jurisprude.  But I too am interested in providing a fuller account of the complexities of judging that goes beyond the “make the law” / “apply the law” dichotomy.  I have been looking for a way to explain my thoughts, particularly to lay and student audiences, who want to know what we think about these things.  And I think a case last term, Abuelhawa v. United States is really good for that.  The facts and legal analysis are easy to understand.  And the case undermines, I think, some misperceptions about judging that are sometimes hard to dispel.  A discussion of Abuelhawa after the jump.

The background to Abuelhawa is this.  Buying cocaine has, for forty years or so, been just a misdemeanor.  But selling it is a felony.  Abuelhawa here was arrested for buying small amounts of cocaine over the phone.  Yet the prosecutors were clever: Why can’t Abuelhawa, as the buyer, be charged with the felony of facilitating the sale of cocaine?  (It turns out there’s actually a separate part of the Controlled Substances Act that makes it a felony to “facilitate” a drug sale by using a phone.)

So the prosecution suddenly charges Abuelhawa with felony counts instead of misdemeanors; instead of a 2 year max, he now faces a 24 year max.  The district court and Fourth Circuit affirm the conviction and uphold this underlying theory of felony-buyer-facilitation.

The Supreme Court reverses.  The Court gives a wide variety of reasons for the result, one of the biggest being that the Court simply has a hard time stomaching misdemeanors abruptly being converted into felonies across such a wide range of cases.

Here’s my question.  With what confidence can we say that the Fourth Circuit’s decision was in error?  I’m really not sure.  I mean, I disagree with it in some sense.  I think the Supreme Court’s approach is in some sense better.  When the Supreme Court granted certiorari and I read the Fourth Circuit’s opinion, I expected reversal.  But, at bottom, there is an unimpeachable logic to the Fourth Circuit’s position.  “Facilitating” means making easier.  And buyers make sales easier; you can’t have a sale without them.  That’s what the text of the statute literally means.  And if it has to be modified, isn’t that Congress’s responsibility?

I really liked an Orin Kerr post from awhile back, and wanted to follow it up here.  We can say that some cases are 50-50 cases, with each side having legal arguments of equal strength.  And we can say that some cases are 90-10, with one side having clearly better arguments.  But those numbers, at bottom, seem to be just predictions – that is, predictions of how the current Supreme Court will weigh the varying legal arguments in question.  A different set of equally well-trained judges –say, the Fourth Circuit panel in Abuelhawa – may see it differently.  And it’s not because they don’t understand or properly appreciate the legal arguments, but because they simply weigh them differently.

The Fourth Circuit here took a rigidly textualist position; the Supreme Court took one more based on structural and prudential concerns.  Unless the law somehow forbids that sort of rigid textualism (which the Court itself adopts on occasion), it’s hard to see how the Supreme Court’s position was absolutely necessitated by the law.  Indeed, if anything, the formalistic “applying the law” model here – because of its heavy emphasis on text – would suggest that the Supreme Court in fact got it wrong.  And the Supreme Court, amazingly, is unwilling to assert that they are clearly right.  Telling, I think, is the last line in the Court’s opinion.  “The Government’s position,” the Court concludes, “is just too unlikely.”  Not wrong, not frivolous, just unlikely.

And the key is this -- by all external appearances, this was one of the easiest cases of the term.  The Supreme Court opinion was unanimous.  It was short (10 pages) with no concurrences.  If the law underdetermines the result here, it raises a lot of questions.  That is a story that maybe the public would like to hear (or maybe not).  Perhaps we’ll hear it, or something like it, next time.

Posted by Chris Lund on October 8, 2009 at 02:17 PM | Permalink


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Orin - sorry for the late response. I agree with you. I found Roberts' responses much more satisfying than Sotomayor's, though of course not perfectly so. But, to be fair to her, doesn't political context explain a large part of it? Justice Sotomayor was reasonably concerned about coming under fire from groups that maintain an airtight and formalistic distinction between making and applying the law. By adopting that oversimplified distinction as her own, she insulated herself from scrutiny. Roberts didn't have to face that, because his attacks were coming from the left. So he could give more nuanced answers, but even he maybe oversimplified some to appease those most concerned about his nomination--his quick disavowal of Lochner, for example, was exactly what they wanted to hear.

Or consider how Justice Thomas embraced empathy in his confirmation proceedings (his "walk in the shoes of the people" comment), while Justice Sotomayor rejected it. Aren't these comments partly a product of external political forces and not a pure unconstrained indication of how they would really judge?

Posted by: Chris Lund | Oct 12, 2009 3:58:00 PM

First, the umpire analogy was fictional and was rightly criticized. He used Lochner to argues that the good judge "calls balls and strikes," instead of making law. Lochner is a disfavored opinion and clearly meant to be an example of what not to do. This again was misleading ... the unkind might use a stronger word.

He criticized Lochner as "substituting their judgment on a policy matter for what the legislature had said." This is false. The opinion noted the law "interferes with the right of contract." It was not based on a "policy matter" -- if the constitutional provision was not violated, the policy would be fine. The courts repeatedly determine if some interference with a constitutional right is justified by a strong enough state interest. It was not about working such and such amount of hours. And, when constitutional rights are involved, yes, judges sometimes determine if the alleged interest is the true one (safety? or illegitimate class legislation?) or is a "compelling" state interest.

As to her comments as to Lochner, I see that it was one of the written questions from Senator Cornyn, not one like Roberts where the person was provided an often more expansive answer in actual testimony. But, I think it is honest to put Lochner on a similar level as other cases in this context (as she did) - they "interpreted" the law there too. In some extent, they also "made" the law by making a decision on the specific application of a constitutional provision. But, the Court does this all the time. Roberts via his "umpire" model wanted to insure us that Lochner was an outlier, a naughty exception. It was not.

She did talk about the issue more in her hearings. For instance, and this shows how there the answers tend to be more extensive, in answer to a question from Sen. Cornyn:

They change -- they can't change law. We're not lawmakers. But we change our view of how to interpret certain laws based on new facts, new developments of doctrinal theory, considerations of whether -- what the reliance of society may be in an old rule.

We think about whether a rule of law has proven workable. We look at how often the court has affirmed a prior understanding of how to approach an issue. But in those senses, there's changes by judges in the popular perception that we're changing the law.

This is what happened the years after Lochner, just as her written comment suggested. More on the topic of interpretation (also from Q&A with Cornyn):

The courts, when they're interpreting, always have to start with what does the Constitution say, what is the words of the Constitution, how has precedent interpreting those, what are the principles that it has discussed govern a particular situation.

More can be said, but she said more than: I believe that the Supreme Court “interprets” law.

Posted by: Joe | Oct 11, 2009 9:20:46 AM

Oh, and it's also interesting to compare side by side the answers of Roberts and Sotomayor on whether Lochner v. New York "made" law. Here's John Roberts:You go to a case like the Lochner case, you can read that opinion today and it's quite clear that they're not interpreting the law, they're making the law. The judgment is right there. They say, "We don't think it's too much for a baker to work" -- whatever it was -- "13 hours as day. We think the legislature made a mistake in saying they should regulate this for their health. We don't think it hurts their health at all." That's right there in the opinion. You can look at that and see that they are substituting their judgment on a policy matter for what the legislature had said.Four years later, Justice Sotomayor was asked whether the Supreme Court "made" law when it handed down Lochner v. New York. She responded: I believe that the Supreme Court “interprets” law.Pretty major difference, in my view.

Posted by: Orin Kerr | Oct 10, 2009 5:40:29 PM


I think it's helpful to compare Sotomayor's testimony to that of John Roberts.

Roberts did not rest nearly so much on formalism. Granted, he famously used the umpire analogy, but he did so primarily to make a normative legal realist argument for a deferential and modest judicial role. (Remember that his original point in mentioning an umpire in his opening statement was that you don't go to a ball game to see the umpire; that is, the judge shouldn't be the focal point of the legal system.)

When queried by Senator Leahy about whether he was an originalist, he said that he would not have "an overarching judicial philosophy that I bring to every case," that he has a "bottom up rather than the top down" approach. He later explained to Senator Grassley that "the demands of deciding cases and the demands of deciding cases by committee -- either a group of three or a group of nine" make such top down approaches impractical: In the real world. he argued, "the nuances of academic theory are dispensed with fairly quickly and judges take a more practical and pragmatic approach."

Roberts testified that when applying the law, he would "begin, obviously, with the precedents before you," and then in constitutional cases consider "what the framers had in mind when they drafted that provision." Exactly what approach he would apply would "depend upon the nature of the case," he contended, but that would be his basic approach.

Roberts was also specifically queried by Senator Hatch on the difference between making the law and applying the law. Hatch told Roberts that no one would be so naive as to think the differences ere always clear. So Hatch asked Roberts, "How do you distinguish between these two roles of interpreting and making law? And can you assure the Senate and the American people that you will stay on your side of this line?"

Roberts responded:I appreciate the point that in some cases the question of whether you're interpreting the law or making the law -- that that line is hard to draw in some cases. I would say not in most cases. I think in most cases, most judges know what it means to interpret the law and can recognize when they're going too far into an area of making law. But certainly there are harder cases. And someone like Justice Harlan always used to explain that when you get to those hard cases you do need to focus again on the question of legitimacy and make sure that this is the question that you the judge are supposed to be deciding rather than someone else.

You go to a case like the Lochner case, you can read that opinion today and it's quite clear that they're not interpreting the law, they're making the law. The judgment is right there. They say, "We don't think it's too much for a baker to work" -- whatever it was -- "13 hours as day. We think the legislature made a mistake in saying they should regulate this for their health. We don't think it hurts their health at all." That's right there in the opinion. You can look at that and see that they are substituting their judgment on a policy matter for what the legislature had said. So the fact that it's difficult to draw the line doesn't relieve a judge of an obligation to draw the line.

There are those more academic theorists who say, "It's a question of degree. And since it's just a question of degree you shouldn't try to draw the line because it's hard sometimes to interpret the law without making the law. We should throw our hands up and say, 'Well, judges make the law,' and proceed from that." That has not been my experience either as a judge or an advocate. My experience has been, in most cases you can see where the line is and you do know when judges are exceeding their authority and making the law rather than interpreting it. And careful judges are always vigilant to make sure that they're adhering to their proper function and not going into the legislative area. Now compare that fairly nuanced and sophisticated answer by Roberts to the testimony of Justice Sotomayor. As far as I recall, Sotomayor never went beyond saying that she would "apply the law," with the caveat that anything a judge does is an application of the law. When asked how she would apply the law, or what she thought that meant, she responded that she would just apply the law. Because judges apply the law, not make the law; if judges do it, in Sotomayor's view, thay are applying the law. That's a quite different kind of answer than that Roberts offered in 2005.

Posted by: Orin Kerr | Oct 10, 2009 5:34:02 PM

A good case for discussion purposes, including to remind some (not all, mind you) fans of Scalia to ratchet down the rhetoric a tad.

Posted by: Joe | Oct 9, 2009 11:12:25 AM

Rick -- Completely agree. I was an avid reader of your Prawfs posts about the abandonment of textualism in cases like Entergy Corp and Begay I meant to write you about Abuelhawa at the time as another confirmation of your thesis, but it never happened. Apologies and it's nice to meet you now.

Orin -- Can you help me out by explaining why you think it's unusual? Do nominees usually give different answers? I would have expected, from all nominees, the sort of answer Justice Sotomayor gave. The statutes are the law. Legislatures make statutes; courts apply them. I grant that this is an overly simplistic or formalistic model, but why is it unusual?

Posted by: Chris Lund | Oct 9, 2009 11:05:13 AM

Abuelhawa is yet another data point suggesting that textual literalism has been swamped by what might be called textual coherence. (Other cases include Begay (interpreting "violent felony" to exclude drunk driving) and Hayes (interpreting state convictions for simple assault as "domestic violence" when the victim is a domestic partner).

And a good thing, too: The notion that text could somehow mechanically foreclose a broader look at statutory purpose was always a hopeless cause, driven by a (mostly conservative) professorial over-reaction to (mostly liberal) judges' abuse of their necessary discretion in statutory construction in the 1970s and 1980s. The solution to the latter problem was never to come up with some highfalutin' theory of hyper-textualism: It was to replace aging Johnson and Carter appointees with new judges. That process having being largely completed, the political foundation for hyper-textualism has evaporated.

Posted by: Rick Hills | Oct 9, 2009 10:28:47 AM

When understanding Sotomayor's position, I think it helps to consider the possibility that she was using terms like "apply the law" and "make the law" in rather unusual ways. For example, consider the exchange in the written part of her questioning that asked the following hypo:Imagine that a state passes a new criminal statute prohibiting vehicles in a state park. The statute does not define the word “vehicle.” Over the course of the next decade, courts in the state are confronted with a series of criminal prosecutions involving go-carts, bicycles, tricycles, motorcycles, Segways, helicopters, and wheelchairs, all of which were brought into state parks. The prosecutions lead to convictions, and the state supreme court rules on which of these means of transportation count as “vehicles” for purposes of the criminal statute prohibiting vehicles in a state park. In each of the cases, the state supreme court recognizes that there is no legislative history to determine what the legislature meant by the term “vehicle.” However, the court announces that it will decide what is a “vehicle” based on what it terms “common sense.” Applying this methodology, the state supreme court rules in individual cases that motorcycles and bicycles are vehicles but that go-carts, tricycles, Segways, helicopters, and wheelchairs are not vehicles. In this scenario, did the state supreme court make any law in your view?Sotomayor answered:In the hypothetical you posit, the law was made when the state legislature passed the criminal statute at issue. The role of the courts is to apply that statute to new factual situations as they come before the courts in the context of particular prosecutions under the statute.Sotomayor was then asked this follow-up question:This question is a continuation of the question immediately above. Imagine that after the state supreme court has ruled on the meaning of the term “vehicle,” the state legislature decides to codify the court’s holdings. The state legislature enacts a statute stating that the word “vehicle” as used in the statute includes motorcycles and bicycles but excludes go-carts, tricycles, Segways, helicopters, and wheelchairs. The legislature’s goal is merely to codify the holdings of the state supreme court. In this scenario, did the state legislature make any law?Sotomayor responded:In the hypothetical you posit, the state legislature made law by enacting a statute defining the word “vehicle” for purposes of the criminal provision. That action constitutes making law because the passage of legislation is the process by which the policy preferences of the people, as expressed through their elected representatives, are codified in the law. Unlike a court applying the statute to a new set of facts in the context of a particular prosecution, the state legislature is not merely interpreting the law, it is making the law. The legislature’s decision as to the proper scope of the term “vehicle” in the statute would therefore properly be based on policy considerations, while a court should not interpret the term “vehicle” according to its own policy preferences.This seems to me to be based on a somewhat unusual concept of what it means to "make" law.

Posted by: Orin Kerr | Oct 8, 2009 11:40:06 PM

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