One of the most annoying aspects of the larger Sotomayor debate is this idea that courts don't make policy. Of course, people may disagree in good faith about whether text and precedent answer a particular question in a given case. But everyone who has spent a week in law school knows that courts do policy. It's inherent to the process -- and it's often inherent to the very text and doctrine at issue.
Anyway, Ed Whelan has a good chuckle at the very notion that Supreme Court Justices should be pondering policy. Here's an excerpt (and note the Update - we'll come back to that):
Volokh actually decimates Whelan's argument. For you Whelan fans out there, it's definitely worth a read to see him so thoroughly embarrassed. With detailed and thoughtful explanations, Volokh obliterates the idea that judges don't do policy. It's the definitive post on the subject.
And don't feel sorry for Ed. He knows all this -- he's a smart guy with outstanding legal credentials. He just enjoys playing the role of know-nothing demagogue. Anonymous Liberal pretty much captured it: