Tuesday, July 21, 2009

Sotomayor on Whether Roe "Made Law"

Judge Sotomayor was predictably reticent in her responses to Senate Judiciary Republicans' written questions.  But several exchanges are worthy of note.  Here's one, with Senator Cornyn:

2.  In your view, did Brown v. Board of Education make law or did it merely interpret law?  Please explain.

Response: As explained in my response to question 2, I believe that the Supreme Court "interprets" law.  Brown v. Board of Education . . . is widely regarded as a correct interpretation of the constitutional command for equal protection of the laws.

3.  In your view, did Roe v. Wade make law or did it merely interpret law?  Please explain.

Response: As explained in my response to question 1, I believe that the Supreme Court "interprets" law.  Cases subsequent to Roe v. Wade . . . have re-affirmed the core holding of Roe.  Cases related to termination of pregnancies continue to come before the Court, and therefore it would be inappropriate for me to comment further.

4.  In your view, did Lochner v. New York make law or did it merely interpret law?  Please explain.

Response:  As explained in my response to question 1, I believe that the Supreme Court "interprets" law.  The reasoning in Lochner v. New York . . . has been criticized by the Supreme Court, and that case is now widely regarded as wrongly decided.

5.  In your view, did Dred Scott v. Sanford make law or did it merely interpret law?  Please explain.

Response:  As explained in my response to question 1, I believe that the Supreme Court "interprets" law, but Dred Scott v. Sandford . . . is widely regarded as wrongly decided.

6.  In your view, did Bush v. Gore make law or did it merely interpret law?  Please explain.

Response: As explained in my response to question 1, I believe that the Supreme Court "interprets" law.  I would not comment on the merits of a recent Supreme Court decision.

Note Judge Sotomayor's different responses to the question on Roe and to the question on Brown.  These answers didn't need to be different.  She simply could have written that the core of both Roe and Brown have been affirmed and reaffirmed by the Court.  And she had the same good reason not to comment further on Brown that she had on Roe: Brown continues to come before the Court, most recently in the 2006 Term in Parents Involved v. Seattle School District No. 1.

It's dangerous to read too much into responses like these, especially when the questions are so obviously political (and not strictly legal, if there's a difference between the two).  But given that Judge Sotomayor could have safely answered these questions in different ways, I wonder whether her response to the question about Roe says anything about her views on its "core holding." 

SDS

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