In a May 27 editorial, The Washington Times asserted, “Speaking at Duke University Law School in 2005, Judge [Sonia] Sotomayor said the 'Court of Appeals is where policy is made.' On its face, the assertion runs counter to more than 200 years of American legal tradition holding that courts are merely meant to interpret existing law, not actively make policy choices.” 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. Moreover, Sotomayor's explanation is in line with federal appellate courts' “policy making” role as described by the Oxford Companion to the Supreme Court of the United States (2005) and explained by numerous legal experts.

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 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.

From Adler's May 3 post on the legal blog The Volokh Conspiracy:

A video of Sonia Sotomayor, a judge on the U.S. Court of Appeals for the Second Circuit widely viewed as a short-listed for the Supreme Court, is making the blogospheric rounds. In the clip, she says that the courts of appeals are “where policy is made.” Some seem to think that this is a damning statement and evidence of closet “judicial activism.” I don't. As presented in the clip, it 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. Moreover, the fact that many policy disputes are resolved in federal appellate courts does not mean that judges are resolving those cases on policy grounds. Litigation over the interpretation or implementation of a federal statute will have significant policy implications -- and deciding the case will, in many instances, “make policy.” But this is wholly consistent with the idea that a judge's responsibility is to interpret and apply the law without regard for those policy consequences. Further, given the context of Judge Sotomayor's remarks, it is totally understandable why some prospective employers would want to hire individuals who are exposed to these sorts of cases. So, in sum, I don't think the statement on this video clip is a big deal. Move along.

Other legal experts have similarly stated that Sotomayor's comment is not controversial, as The Huffington Post and PolitiFact.com have noted. For instance, Hofstra University law professor Eric Freedman has reportedly said that Sotomayor's remark is “the absolute judicial equivalent of saying the sun rises each morning” and “thoroughly uncontroversial to anyone other than a determined demagogue.” Supreme Court historian David Garrow has reportedly said, “What [Sotomayor] said there is simply the honest version of what any judge knows and realizes,” adding, “To anyone who knows the intellectual history of judicial decision-making, she's just being honest, not activist.” Further, Stony Brook University political science professor Jeffrey Segal has reportedly stated, “Of course they make policy. ... You can, on one hand, say Congress makes the law and the court interprets it. But on the other hand the law is not always clear. And in clarifying those laws, the courts make policy.”

In a separate article, The Huffington Post noted that Justice Antonin Scalia is among the “justices on the Supreme Court [who] have said the same thing and baked it into their judicial decisions.” From the May 28 Huffington Post article:

But, as it turns out, Sotomayor needn't worry about talking about how policy is made at the appeals level on videotape. Why, some justices on the Supreme Court have said the same thing and baked it into their judicial decisions. Like, say, noted leftist jurist Antonin Scalia, who, in the majority opinion of 2002 case Republican Party of Minnesota v. White, wrote:

This complete separation of the judiciary from the enterprise of “representative government” might have some truth in those countries where judges neither make law themselves nor set aside the laws enacted by the legislature. It is not a true picture of the American system. Not only do state-court judges possess the power to “make” common law, but they have the immense power to shape the States' constitutions as well. See, e.g., Baker v. State, 170 Vt. 194, 744 A. 2d 864 (1999). Which is precisely why the election of state judges became popular.

In footnote 12, Scalia elaborated (emphasis added):

Although Justice [John Paul] Stevens at times appears to agree with Justice [Ruth Bader] Ginsburg's premise that the judiciary is completely separated from the enterprise of representative government, post, at 3 ("[E]very good judge is fully aware of the distinction between the law and a personal point of view"), he eventually appears to concede that the separation does not hold true for many judges who sit on courts of last resort, post, at 3 (“If he is not a judge on the highest court in the State, he has an obligation to follow the precedent of that court, not his personal views or public opinion polls”); post, at 3, n. 2. Even if the policy making capacity of judges were limited to courts of last resort, that would only prove that the announce clause fails strict scrutiny. "[I]f announcing one's views in the context of a campaign for the State Supreme Court might be" protected speech, post, at 3, n. 2, then-even if announcing one's views in the context of a campaign for a lower court were not protected speech, ibid.-the announce clause would not be narrowly tailored, since it applies to high- and low-court candidates alike. In fact, however, the judges of inferior courts often “make law,” since the precedent of the highest court does not cover every situation, and not every case is reviewed. Justice Stevens has repeatedly expressed the view that a settled course of lower court opinions binds the highest court. See, e.g., Reves v. Ernst & Young, 494 U.S. 56, 74 (1990) (concurring opinion); McNally v. United States, 483 U.S. 350, 376--377 (1987) (dissenting opinion).

In his 2007 book, Decision Making in the U.S. Court of Appeals, Cross wrote: “The circuit courts play by far the greatest legal policymaking role in the United States judicial system. ... [C]ircuit court decisions are almost always about defining the law, and they set binding precedents for the multistate area that the circuit covers.” From Decision Making in the U.S. Court of Appeals:

While most public reportage and even scholarly research deals with the U.S. Supreme Court, the circuit courts are much more important in setting and enforcing the law of the United States. The Supreme Court now decides only seventy-five cases a year and cannot address, much less resolve, most legal questions facing the nation. By contrast, the circuit courts resolve more than fifty thousand cases a year. Each of those decisions is binding precedent within the geographic bounds of the circuit and typically influences the application of the law even outside those bounds. When the circuit courts agree, they essentially establish the law for the entire nation. When the circuits disagree, they create a circuit split, under which the law is unsettled and geographically variant. In either situation, the circuit courts set the legal ground rules for citizens. They are the court of last resort for most litigants. Fewer than 15% of circuit court decisions are even appealed to the Supreme Court and fewer than 2% of those appeals are taken by the high court.

Thus, in large measure, it is the circuit courts that create U.S. law. They represent the true iceberg, of which the Supreme Court is but the most visible tip. The circuit courts play by far the greatest legal policymaking role in the United States judicial system. The district courts, as trial courts, hear far more disputes than do the circuit courts but district court decisions are heavily fact based and jurisdictionally limited in effect, and they do not set the significant legal precedents that make up the law. By contrast, circuit court decisions are almost always about defining the law, and they set binding precedents for the multistate area that the circuit covers. These decisions are also commonly used as persuasive precedent by courts in states outside the circuit's jurisdiction and even by the Supreme Court. Although an individual Supreme Court decision is more important than a corresponding individual circuit court decision, the very limited docket of the Supreme Court leaves U.S. law largely to the judgment of the circuits. (Page 2)