In a May 2006 speech, Judge Sotomayor tells "a joke that [she thinks] aptly describes the difference between supreme court, circuit court, and district court judging":
It involves three judges who go duck hunting. A duck flies overhead and the supreme court justice, before he picks up his shotgun, ponders about the policy implications of shooting the duck — how will the environment be affected, how will the duck hunting business be affected if he doesn't shoot the duck, well by the time he finishes, the duck got away.
Another duck flies overhead, and the circuit judge goes through his five part test before pulling the trigger — 1) he lifts the shotgun to his shoulder, 3) [sic] he sights the duck, 3) he measures the velocity of the duck's flight, 4) he aims, and 5) he shoots—and, he misses.
Finally, another duck flies by, the district judge picks up the shotgun and shoots. The duck lands and the district judge picks it up, swings it over his shoulder and decides that he will let the other two judges explain what he did over dinner.
So Sotomayor thinks an unobjectionable and apt description of the role of Supreme Court justices in making decisions involves "ponder[ing] about ... policy implications."
(The excerpt above is from the prepared text on pages 10-12 of the speech (emphasis added). Sotomayor handwrote some trivial changes.)
The trouble with this criticism, it seems to me — even if you take the joke seriously on this point — is that of course Supreme Court Justices routinely, and entirely properly, consider "policy implications" in the sense of consequences. Let me just offer a few examples:
1. In some cases, the Supreme Court acts as a common-law-making court, or something very close to it, and there is (and should be) very little controversy about this. Admiralty law is one example. The defenses to federal criminal charges are another. (Federal crimes are legislatively defined, but the defenses are not.) The law of many federal remedies is in some measure another — consider the preliminary injunction standard, which calls for considering the consequences of granting or denying the injunction, or consider the qualified immunity caselaw, which has largely been developed with an eye towards the consequences of providing more or less liability.
This is so even when there are statutes, but the statutes are either deliberately vague or specifically delegate authority to federal courts. Antitrust law, where the Court has for over a century interpreted the categorical ban on restraints of trade as an authorization to develop a law of which restraints are permissible and which aren't, is another noted example. The fields of evidentiary privileges and copyright fair use, where the Congress expressly left the federal courts the task of developing the law further, offer more examples. In all these areas, the job of the federal courts, and in particular the Supreme Court, is to develop legal rules that they see as sensible "in the light of reason and experience," and looking at consequences ("the policy implications") is an important part of that.
Recall that most of American law (including property, tort, contract, evidence, and criminal law) was developed by the common-law courts. It has been in considerable measure codified by legislatures, but common-law courts continue to develop it. The scope of common law and common-law-like development by federal courts is narrower, but there are still considerable chunks in which it persists.
2. But I take it that Whelan is particularly considered about the interpretation of statutes — and let's even focus on those statutes that don't contain broadly recognized delegation of broad authority to judges — and of constitutional provisions (though Judge Sotomayor didn't focus on those). Still, it's pretty uncontroversial that even there judges should look at practical consequences. To my knowledge, all the Justices, including the strongest textualists and originalists on the Court (such as Justices Scalia and Thomas), routinely consider practical implications in interpreting statutes and constitutional provisions.
The cases that come before the Supreme Court are generally not ones in which the text provides one absolutely clear result. There are plenty of such cases in our legal system, but they tend to be resolved early, precisely because the result is clear. Rather, you often have several plausible readings. Figuring out the best reading often leads judges to ask whether one or another reading would have results that are ridiculous, or inconsistent with what was understood as the purpose of the provision, or unduly administratively burdensome.
Now one can certainly argue that courts should look first and foremost at the text and original meaning; but as I mentioned, I think nearly all Justices and judges would agree that the text and original meaning are often not dispositive. One can also ask that, within those boundaries, courts be attentive to precedent. But precedent itself has often been developed based on considerations of consequences (especially when the text and original meaning were ambiguous). And the decision whether to reverse precedent itself often involves consequentialist attention to "policy implications"; see for instance two recent reversals of precedent, Montejo v. Louisiana and Arizona v. Gant, in both of which Justices Scalia and Thomas were in the majority (and in one of which Chief Justice Roberts and Justice Alito were in the majority).
3. Finally, recall that many well-established constitutional tests, including ones that aren't controversial among conservatives, liberals, or pretty much anyone else, specifically call for an evaluation of consequences. Even Justices Scalia and Thomas, who would read the Equal Protection Clause as being a nearly categorical ban on race classifications by the government, would recognize an exception for "those measures the State must take to provide a bulwark against anarchy, or to prevent violence" (such as prison riots or "imminent danger to life and limb). Likewise, speech restrictions may sometimes be constitutional if they are necessary to serve a sufficiently important government interest — and you can't decide that without looking to the consequences of the decision.
I mention all this because talk about how judges shouldn't "make policy" has been commonplace now, especially on the Right. (Consider also the fuss about Judge Sotomayor's "the court of appeals is where policy is made" line.) And I think criticisms of excessive judicial policymaking — and in particular, in the sense Judge Sotomayor uses the phrase in the joke quoted above, decisionmaking based on what seems to the judge to be likelier to produce good results — are often correct. Sometimes the text or original meaning of a binding legal command is clear, and courts should follow that.
But it's a mistake, I think, to turn that important insight into a categorical assertion that judges shouldn't "make policy," or should just "follow the law" instead of "making the law." First, judicial development of legal rules, with an eye towards their consequences, is a longstanding feature of American law, recognized and accepted from the Framers onwards. (Yes, I know that there was often talk about how the courts "discovered the law" rather than "made the law," but the reality was that judges did indeed make important decisions based partly on the perceived consequences of those decisions, rather than just following unambiguous custom or the commands of abstract reason.) In the federal courts, the proper scope of the courts' pure common-law-making powers is less, but it's also supplemented by deliberate delegations by Congressional statutes.
Second, some judicial attention to consequences is inevitable given the ambiguity of the text and original meaning of most statutes and constitutional provisions. And third, the constitutional rules that courts have developed — with the support of even those Justices who care most about text and original meaning — expressly call for some degree of consequentialist reasoning in their application.
Any particular decision, or set of decisions, by a court or a judge can of course be faulted for unduly departing from the commands that one thinks should be legally binding. But a thoroughgoing condemnation of judicial attention to "policy implications" in the sense of a decision's practical consequences strikes me as unsupportable, especially in the American legal system as it has been understood for centuries and as it continues to be understood today even by the judges that the Right most applauds.
UPDATE: Ed Whelan e-mailed me to note that he has revised his post in light of this one, to say (italics indicates new text):
So Sotomayor thinks an unobjectionable and apt description of what is most distinctive about the role of Supreme Court justices in making decisions involves is “ponder[ing] about ... policy implications.”
I much appreciate the revision, which does make Whelan's point narrower. But I think that on balance the criticism still isn't quite apt.
A. Recall that the Supreme Court agrees to hear only about 1-2% of the cases that it's asked to hear. Generally speaking, these are cases on which lower courts have split, or on which the courts have disagreed with Congress and the President on the meaning of the Constitution. They are therefore precisely the sorts of cases in which statutory or constitutional text is ambiguous. So the cases the Court hears tend to be precisely the ones that are most likely (not certain, but most likely) to involve a substantial legitimate zone for consequential judgment, even to those judges who think text and original meaning should trump. [UPDATE: D'oh! At first wrote "tend not to be ..."; how did that happen? Sorry.]
B. The Supreme Court is much less bound by its own precedents than are lower courts. In practice, the Supreme Court still adheres to its own precedents in nearly all cases, but it is free to reverse them — and, as I mentioned, concerns about consequences play a major role in deciding whether to reverse a precedent.
C. The Supreme Court it's not all bound by circuit precedent, where district and circuit judges are (except when the circuit is hearing a case en banc). So while district and circuit court arguments are often disposed of by simple citation to a binding circuit precedent, arguments in the Supreme Court often can't be disposed of so easily (and if they could be, the Court wouldn't have agreed the case, see item A).
So for all these reasons, it seems to me that Supreme Court justices are even more likely than other federal judges to legitimately consider the consequences of their decisions. What is indeed legitimately and particularly distinctive about the Supreme Court is that the Justices often can't say "we follow the clear text or original meaning" (since if it was so clear, the case would generally not even be at the Court), sometimes shouldn't say "we follow our own precedent" (since often there's a solid argument for reversing the precedent), and nearly never say "we follow circuit precedent." Instead, they must look to other sources — and consequences, for the reasons I described above, are one such important source.