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Did Proposition 8 Court Read Right-Wing Blogs?

6 years ago
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A slew of conservative blogs have been attacking Sonia Sotomayor, President Obama's nominee for the US Supreme Court, for a statement that she made in 2005:
Judicial Confirmation Network, a conservative group that focuses on judicial nominees, made reference to the quote in a statement this morning condemning Sotomayor's nomination, alleging that Sotomayor "thinks that judges should dictate policy." Conservative bloggers have focused on it as well: The Weekly Standard,, and NewsBusters have all featured posts on the comment this morning.

Ed Rawls at Cubic Politics notices a striking coincidence in the California Supreme Court's decision upholding Proposition 8:
Before explaining why the Supreme Court Of California is ending the policy of gay marriages, Chief Justice George succinctly explains in a one-hundred and thirty-six page 6-1 majority opinion why the court is not making policy:

In addressing the issues now presented in the third chapter of this narrative, it is important at the outset to emphasize a number of significant points. First ... our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.

The California court seems awfully defensive about the notion that their decision might be somehow construed as having the effect of making policy. It's a shame they didn't keep on going down the blogroll, until they hit Hot Air:
Via Gabriel Malor and Verum Serum, I'm trying to muster some outrageous outrage but can't pull it off. Of course courts make policy. Every time they "interpret" a constitutional clause or statute, they add interpretive rules to guide lower courts; because of stare decisis, every court opinion is in essence a new bit of binding policy gloss on the statute in question. For example, there's nothing in the Constitution about when defamatory speech should be protected. The public figure/private figure standard is a judicial creation which operates in effect as policy because that's the standard lower courts apply when weighing a First Amendment defense to defamation.
As my brethren on the right might say, BAM!
Tommy on: Daily Dose:

Filed Under: Gay Rights, Supreme Court

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