The Right regularly attacks progressive judges for "making policy" and "legislating from the bench." But in oral arguments yesterday, the Supreme Court Justices demonstrated yet again that one of their most important roles is to make policy in difficult circumstances where the law is unclear.

The case involves a man named José Padilla who was born in Honduras and has lived in America for 40 years. (He is no relation to the former "enemy combatant" of the same name). Considering whether to plead guilty to trafficking in marijuana, he turned to his lawyer for advice. Relying on the lawyer’s incorrect assertion that a guilty plea would not affect his immigration status, he pled guilty and now finds himself subject to deportation.

The Court must decide if Padilla was unconstitutionally deprived of effective assistance of counsel and should therefore be allowed to withdraw his guilty plea. During oral argument, Justices across the ideological spectrum appropriately asked probing questions as they wrestled with difficult policy options. The Washington Post reports:

Justice Sonia Sotomayor … said the threat of deportation was an important component of a defendant’s decision on whether to go to trial and risk a longer sentence, or plead guilty to a charge that would automatically send him back to a place where he "might starve to death."

But other justices worried that it would be impossible to limit the issue to deportation — a tack that Padilla’s attorney Stephen B. Kinnaird suggested was one way to narrowly decide the case.

"We have to decide whether we are opening a Pandora’s box here, whether there is any sensible way to restrict it to deportation," said Justice Antonin Scalia. "What about advice on whether pleading guilty would — would cause him to lose custody of his children? That’s pretty serious. What if pleading guilty will — will affect whether he can keep his truck, which is his main means of livelihood, or whether — whether it would be seized by the government as the instrument of his crime?"

Justice Samuel A. Alito Jr. said he was sympathetic to Padilla’s predicament. "Your argument has an appeal because removal is such a harsh consequence, particularly for someone like your client, who had been in the United States for a long time," he said. But he wondered how to ever know whether such a conversation had occurred between client and attorney.

Clearly, deciding difficult cases like this is not as easy as simply calling balls and strikes.

I look forward to hearing those who vigorously complain about "legislating from the bench" condemn Justices Scalia and Alito for yesterday’s questions.

I also look forward to seeing exactly what process they propose the Justices use to call this a ball or a strike.