At Duke Law School back in 2005, Judge Sonia Sotomayor said that "the court of appeals is where policy is made." Conservative pundits have immediately jumped on these words as proof that Judge Sotomayor is an "activist" who will legislate her own preferences on us all from the Supreme Court bench.

This is nonsense. Appellate judges do "make policy," and it's an uncontroversial and even necessary piece of their job description.

She uttered these words during a panel discussion for the benefit of Duke law students, many of them aspiring law clerks to judges around the country. One such student asked her how trial courts are different from appellate courts. Judge Sotomayor replied that whereas trial courts are concerned with the specific facts of the cases before them, appellate courts are "where policy is made."

A layman might think the word "policy" here means something like "whether it would be a good idea for the federal government to fund abortions for poor women" - something that our elected representatives are supposed to decide.

But lawyers (and law students ) know that "policy" can also be a way of summing up a practical and unremarkable difference between trial and appellate courts.

The federal courts of appeals are, in practical terms, our courts of last resort. The Supreme Court gets to choose its cases, and chooses only around eighty each year from the thousands presented to them. What this means is that once a federal appellate court decides a case, it's over. Sure, there's a remote chance that the Supreme Court will decide to hear it, but you'd probably have better luck buying a lottery ticket.

This gives our federal appellate courts a special responsibility. They're the ones who have to keep the law orderly. Unlike trial courts, whose decisions other courts are not required to follow, federal appellate courts control the law in a whole region of the country. When Judge Sotomayor's Second Circuit Court of Appeals speaks on a point of law, it becomes the rule throughout New York, Connecticut, and Vermont.

That's some populous terrain, with a lot of federal trial judges. And they can be an unruly bunch. Often their decisions - on all manner of things, including arcane stuff like the rules of evidence and the rules of court procedure - conflict with one another. It is the responsibility of appellate courts to bring order to that chaos - to make sure that the trial courts aren't getting too far out of line. To do this, they can't just think about the specific facts in the case before them. They have to reflect on what the consequences will be in other cases and other contexts. They have to think about how hard or easy a rule will be to apply. They have to make a rule that will apply generally, not a rule just for one case.

In other words, they "make policy." It's not the sort of policy that Congress makes. But it's policy.

The Duke law students tittered when Judge Sotomayor claimed a "policy"-making role for appellate judges with the cameras rolling. They surely knew how easy it would be for unfair or uninformed observers outside the walls of a law school to jump to a wrong and embarrassing meaning.

It turns out their nervous laughter was well-founded; that is just what unfair and uninformed observers are now doing.

But what Judge Sotamayor said to those law students was absolutely right. Appellate judges make policy. And they do so without stepping on Congress's toes, or ours.

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Eric Muller is the Dan K. Moore Distinguished Professor in Jurisprudence and Ethics at the University of North Carolina School of Law.