I'm trying to do my duty and watch some of the Roberts confirmation hearing. Teddy's on, talking about Brown v. Board of Education. Roberts seems knowledgeable, quick, but you'll know he's made a huge mistake if he says anything newsworthy. His job is to sit there, remain conscious, be unremarkable, be mild, be not very scary, and then go get fitted for his robe. He doesn't need to sell himself. The only way he doesn't get this job is if he announces that the wrong side won the Civil War, or that he thinks it's acceptable to keep children in cages.
He said yesterday that being a judge, even a Supreme Court judge, even the Chief Justice of the United States, isn't really that snazzy a job. You're not the baseball star, you're just the guy with the mask and heavy padding who squats behind the catcher:
"The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire."
He later continued with the metaphor: "I will remember that it's my job to call balls and strikes and not to pitch or bat."
Okay, but what's his strike zone?? WILL HE HAVE THE COURAGE TO CALL THE CHEST-HIGH STRIKE? You see where this baseball metaphor founders. The umpires DO ignore some rules and impose others. They make up rules on the fly, adjusting their strike zone, making allowances for veteran pitchers (Greg Maddux can throw a ball literally a yard outside and still get the call) and veteran hitters (someone like Wade Boggs never saw a called strike three).
Back to Roberts: He says, "I do think it is a jolt to the legal system when you overrule a precedent ... It is not enough that you may think the prior decision was wrongly decided ... If an overruling of a prior precedent is a jolt to the legal system it is inconsistent with the principle of stability."
Right there is one of the great things about being a justice: When you know a precedent is wrong, you can either overturn it, or decide that you're not going to overturn it because doing so would cause instability and societal unhappiness and most of all be inconsistent with the principle of "stare decisis." You can invoke a Latin term that most people don't know. First rule of jurisprudence: When in doubt, switch to Latin.
It is nice to have the stare decisis option. Like on a Sunday afternoon when you are supposed to be doing chores or paying bills or attending some PTA function, but instead you are watching football, inert, functionless, nothing but a chips-and-salsa-munching machine: Undoubtedly your spouse will urge you to get up and achieve something. You must at that critical moment invoke the principle of stare decisis. You must say, "I think it would be a jolt the system were I to overturn the precedent of being a worthless vegetable." Stare decisis means you get to do whatever you want. On principle.
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