In the context of noting that "[c]onservatives have criticized" Supreme Court nominee Sonia Sotomayor for saying in 2005 that “the Court of Appeals is where policy is made,” a July 9 Washington Post article reported, “Although her decisions are filled with citations of the law and precedent, Sotomayor once pointed to 'powerful policy considerations' in allowing a lawsuit against Visa and MasterCard.” But as numerous legal experts have noted, appellate court judges have policymaking roles. Indeed, the Supreme Court itself has cited “policy” considerations in interpreting the provision at issue in the appeal Sotomayor heard.

The Oxford Companion to the Supreme Court of the United States (2005) refers to appellate courts' “policy making” role. University of Texas-Austin law professor Frank B. Cross has similarly written that "[t]he circuit courts play by far the greatest legal policymaking role in the United States judicial system." Indeed, according to Jonathan Adler, a professor at Case Western Reserve University School of Law, Sotomayor's 2005 remark “seems to be nothing more than an observation that, as a practical matter, many policy disputes are resolved in the federal courts of appeals. This is an indisputably true observation.” Adler has been honored by the Federalist Society, advised the Cato Supreme Court Review, and strongly supported the nominations of Supreme Court Chief Justice John Roberts and Justice Samuel Alito Jr. Other legal experts have similarly stated that Sotomayor's comment is not controversial, as The Huffington Post and PolitiFact.com have noted.

Additionally, while staff writer Jerry Markon noted that "[t]he White House has defended" Sotomayor by stating that her “policy” remark “was taken out of context,” Markon never described the context of the remarks. In fact, the context of Sotomayor's comments makes clear she was simply explaining the difference between district and appeals courts after being asked to contrast the experiences in clerkships at the two levels.

In the case involving Visa and MasterCard, Sotomayor mentioned “powerful policy considerations” in the course of determining whether the plaintiffs -- businesses and trade associations -- met the requirements for proceeding as a class action in their antitrust lawsuit against the credit card company. Interpreting Rule 23 of the Federal Rules of Civil Procedure -- which governs the certification of class actions -- Sotomayor stated:

Meanwhile, the dissent underestimates the powerful policy considerations that favor certification, and ignores the exhaustive analysis performed by the district court, carefully applying the Rule 23 requirements for class certification. While both the district court and this Court have acknowledged that difficulties in managing this large class action may arise, these problems pale in comparison to the burden on the courts that would result from trying the cases individually.

But Markon did not note that in 1997, the Supreme Court quoted with approval an appellate court decision that cited the policy behind the class action procedure embodied in Rule 23. In Amchen Products Inc. v. Windsor, in an opinion joined by then-Chief Justice William Rehnquist and Justices Antonin Scalia, Anthony Kennedy, David Souter, and Clarence Thomas, Justice Ruth Bader Ginsburg wrote: (emphasis added):

While the text of Rule 23(b)(3) does not exclude from certification cases in which individual damages run high, the Advisory Committee had dominantly in mind vindication of “the rights of groups of people who individually would be without effective strength to bring their opponents into court at all.” Kaplan, Prefatory Note 497. As concisely recalled in a recent Seventh Circuit opinion:

“The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone's (usually an attorney's) labor.” Mace v. Van Ru Credit Corp., 109 F. 3d 338, 344 (1997).

From the Post's July 9 article:

Although her decisions are filled with citations of the law and precedent, Sotomayor once pointed to “powerful policy considerations” in allowing a lawsuit against Visa and MasterCard to go forward, and she worried about damage to U.S.-British relations in arguing that British subjects should have access to U.S. courts. Conservatives have criticized Sotomayor for saying in 2005 that “the Court of Appeals is where policy is made. I know this is on tape, and I should never say that.” The White House has defended her, saying the remark was taken out of context.