A response for Sonia Sotomayor to John Cornyn and other Rethugs...

...To answer that, we need to recall our history. The Framers created a written Constitution to make sure our constitutional rights were fixed and certain. The state conventions who represented “We the People” looked at that written Constitution and decided to adopt it. The idea was that our rights would be written down for all to see.

This framework gave judges a role that is both unique in our form of government, and important. The role of judges was intended to be modest – that is, self-restrained and limited. Judges were not free to invent new rights as they saw fit.
They were supposed to enforce what the Constitution’s text says to enforce – and to leave the rest to the elected branches and to “We the People.”

Over time, however, the Supreme Court has often veered off the course established by the Framers. First, the Supreme Court has invented new rights not clearly rooted in any constitutional text. For example, the Supreme Court has micromanaged the death penalty, creating new rights spun from whole cloth. It has announced constitutional rules governing everything from punitive damages to sexual activity. It has relied on international law that the People never adopted.

The Supreme Court has even taken on the job of defining the rules for the game of golf. (If you’re curious, the case is PGA Tour v. Martin from 2001). Some people call this “judicial activism.” Whatever you call it, it’s pretty far from enforcing the written Constitution that the Framers proposed and the people enacted.

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First, the Supreme Court could try to get us back on course. That is, the Court could renew its respect for our original plan of government – and return us slowly but surely to the written Constitution. The Supreme Court’s recent Second Amendment decision in DC v. Heller is a good example of this.

Second, the Court could veer off course once again – and follow its own star. It could continue to depart from the written Constitution. It could further erode the established rights we have in the text of the Constitution. And it could invent even more brand new rights not rooted in the text and not agreed to by the American people.

Judge Sotomayor, the purpose of this hearing is to determine which path you would take if confirmed to the Supreme Court. Would you vote to return to the written Constitution and the laws written by the elected representatives of the people? Or would you take us even further away from the written Constitution and laws legitimated by the consent of the governed?

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Judge Sotomayor: we thank you for your candor in these speeches. Not every judicial nominee is so open about their judicial philosophy. Yet many Americans wonder what these various statements mean – and what you’re trying to get at with these remarks. And many more wonder whether you are the kind of judge who will uphold the written Constitution – or the kind of judge who will veer us even further off course –and towards new rights invented by judges rather than ratified by the people.

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Senator Cornyn and other members of this committee...

Let me thank you all for being so concerned, as I am, about the role of the Supreme Court in supporting constitutional law and to ensure that the Supreme Court justices and other personnel involved in rendering decisions and documents related to our cases follow the law whether it be based in the constitution or other legislated law on our books.

The courts should not try to "invent law" as you note, and follow the law where the law covers the cases that come before us. On some occasions there are situations where whether existing laws is clearly missing or perhaps wasn't written directly to address the situations coming before the bench, which requires judicial interpretation of existing laws to have them fit the problems before us. We try to use stare decisis to follow other decisions made before us, but at times even those decisions may not applicable, or reflect judicial decisions that weren't made legitimately made in the past.

For example, the whole concept of "corporate personhood" that has been argued to be law based on stare decisis should be reviewed for its constitutionality, and unlike other decisions that are followed using stare decisis, the subsequent judicial decisions based on the original head notes of Santa Clara vs. Southern Pacific were not even based on a judicial interpretation of law, but a court clerk's interpretation of law who is not tasked in making judicial decisions to affect future judicial decisions, which in effect happened in such a way. The result was that your quote "We the people" no longer means what I would consider what its founders meant it to be. Living, breathing human beings. So like you, I think were that sort of case to come before me, I would defer to the constitution instead and say that corporations don't have the rights that have been "invented" by the courts for them since that faulty "court clerk activist" decision was made then.