Word: courting
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...idea that the Supreme Court can make policy shouldn't be controversial after its decisions in two of the most contentious cases of the term that ended last month, one involving voting rights and the other affirmative action. In the voting-rights case, Chief Justice John Roberts produced the most impressive example of judicial statesmanship of his tenure by persuading all but one of his fellow Justices to converge around a result that never occurred to Congress when it passed the Voting Rights Act in 1965. A prudent demonstration of judicial policymaking, the decision was widely praised by liberals...
...Ricci v. DeStefano, the closely watched affirmative-action case, the court was criticized by liberals - and praised by conservatives - for inventing a new legal standard to determine when cities can throw out promotion exams that have discriminatory effects on minority firefighters. Whether or not you like the decision, there's no question that the court was making policy, coming up with a pragmatic rule that Congress never passed...
...couldn't Sotomayor acknowledge that Justices often legislate from the bench? She cited as her judicial hero Justice Benjamin Cardozo, who served on the Supreme Court from 1932 to 1938. Sotomayor praised Cardozo for his "great respect for precedent and his great respect ... and deference to the Legislative Branch." But Cardozo wasn't always an advocate of judicial deference. In his most famous book, The Nature of the Judicial Process, Cardozo called a chapter "The Judge as a Legislator." Like legislators, Cardozo wrote, judges must get their experience "from life itself," and when the law isn't clear, a judge...
...some of her speeches, Sotomayor seems to acknowledge that courts sometimes play a policymaking role. But her testimony and judicial opinions suggest that judges should avoid legislating from the bench at all costs. That should mollify those who worry that she will be swayed by empathy rather than the Constitution, but it's a less-than-complete description of how judges actually behave - or perhaps what she herself believes. At this point in our polarized judicial politics, it's too bad that Senators and Supreme Court nominees can't say in public what many of them recognize in private...
Rosen, a law professor at GWU, wrote The Supreme Court: The Personalities and Rivalries That Defined America...