While she grudgingly agreed that such things might, perhaps, occassionally happen, Sotomayor basically told the Senate Committee that it's never a court (or judge or justice) making law because the definition of making law doesn't apply to what courts, judges and justices do. Well, what if congress then formall enacts just that rule? Congress will have made law. The court will merely have interpreted. The act is the same, but the actor, controls the name we give to the activity.
I professed English, taught literature and writing to college students for fifteen years before I went to law school. Then and since (and before, but that's a quibble) I've spent more hours than I care to count considering the power and importance of language, of the word, logos.
And God said, Let there be light: and there was light. And God saw the light, that it was good: and God divided the light from the darkness. And God called the light Day, and the darkness he called Night. And the evening and the morning were the first day.Speak the name and call forth the thing. Name it, and it is. No small thing this. Words matter.
To appellate lawyers and judges (and justices) words really are everything. We don't have live testimony, we have cold transcripts. We don't have (at least not commonly) the power point presentations and videos and audio tapes. When they matter, they commonly have to be transcribed, drawn down to their base essence as words. We don't have witnesses who fidget and look down and mumble and look evasive or forceful or indifferent. The scientist's lab coat is as purely a thing of the imagination in the court of appeals as is the police officer's uniform.
What we have is words and voice.
When I taught, I realized that teaching is performance. There are many ways to do it well (and, of course, to do it badly), but it's all performance. So is litigation. When I stand up in the courtroom - to object, to make an argument, to ask a question or to answer one - it is my stage.
The judges want to direct, of course. They can interrupt me or shut me down. At a motion hearing or in an appellate court (and also, but less readily, at trial) they can tell me to change gears, to shift topics. It's my job not to let them control things to the point where I don't get to pursue the script I'm interested in writing.
I control the stage through inflection, volume, tempo, gesture, appearance, force of personality, presence. But mostly through the words I choose. It's the poetry of prose, something more than the prose Jourdain was so delighted to learn he had been speaking all his life in Moliere's Le Bourgeois gentilhomme. The argument must be sound, the references to the law and the record precise and accurate, but like the classroom lecture, if the jury or the judge doesn't pay attention, I gain nothing. I must convince not merely through logical argument (as the courts, and law schools) would like us to believe, but through the power of how that logical argument is presented.
The judge/justice who writes an opinion need not convince. Explanation is required, but not more. It need not be convincing, or (and many who wear the robe are probably grateful for this part) even coherent. The judicial command isn't theatrical, isn't rhetorical, isn't logical (though judges and justices may be some or all of those things, as may their opinions). It's a creature solely of power.
I argue. They decide.
Their word counts because of the position they hold. Justice Jackson, concurring in Brown v. Allen, explained
We are not final because we are infallible, but we are infallible only because we are final.The story goes that Justice Brennan would, to each of his new law clerks, hold up his hand and direct their attention to it. Then he would explain the Rule of Five. "Five votes can do anything around here." If he could round up four additional votes, he could decide the case. That simple, really.
I can do the same thing with a majority of a court. But I don't start with my own vote. You see, the word is powerful and its mere utterance calls the thing into being only when the speaker has that godlike power.
There's a fiction of fungibility, that it shouldn't matter who the judge is because, well, because. When they put on the robe, they're interchangeable. In some sense, sometimes, maybe. But ultimately it matters. A lot.
Judge Sotomayor will, barring catastrophe, become Justice Sotomayor in the very near future. Her words have been neither eloquent nor honest. Frankly, they've often not even been coherent. They didn't have to be, which shows the power of sheer power. As used, it's straight out of Through the Looking Glass.
`I don't know what you mean by "glory",' Alice said.And so, as Kurt Vonnegut would have it, it goes.
Humpty Dumpty smiled contemptuously. `Of course you don't -- till I tell you. I meant "there's a nice knock-down argument for you!"'
`But "glory" doesn't mean "a nice knock-down argument",' Alice objected.
`When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'
`The question is,' said Alice, `whether you can make words mean so many different things.'
`The question is,' said Humpty Dumpty, `which is to be master -- that's all.'