Scalia and Alito Also Believe Courts Make Policy

Critics of recent U.S. Supreme Court-designee Sonia Sotomayor are apoplectic about video of comments she made regarding the law-making role of the Federal Court of Appeals.  She's right, of course, that courts at all levels make policy.

As I teach my students, the constitution is an organic document that changes with the times (hence, the various amendments). The notion that judges shouldn't make policy (or law) is laughable. They are in place to judge the legitimacy of a given policy. That, by extension, is policymaking (to end, or continue, the policy in question). The bottom line for me is the double-standard that some seem to have on this issue: If the judge rules in a way that runs counter to my philosophy, then he or she is an activist. If they rule in line with my beliefs, then he or she is "restrained" in their decision making.

Here is a piece that exposes this double-standard.