Retiring Chief Justice Roberts's umpire analogy
Between some astonishingly awful refereeing at the World Cup and MLB umpire Jim Joyce’s infamous, perfect game-robbing miscall last month, it’s been a rough summer for the world’s arbiters of sport. So as Supreme Court nomineeElena Kagan prepares for her confirmation hearings this week, it’s an appropriate time to revisit -- and retire -- the famous “justice-as-umpire” analogy that Chief Justice John Roberts trotted out at his own confirmation hearings in 2005.
“Judges are like umpires,” Roberts said. “Umpires don't make the rules; they apply them. 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.”
It has become gospel that an American Supreme Court justice is supposed to check her life experience and her values at the door when she hears a case -- just as an umpire is supposed to apply an objective strike zone to adjudicate pitches, a simple “who came first?” test when making calls on the basepath. But this is patently impossible.
Speaking at Harvard’s commencement in May, Justice David Souter dismantled the fallacy that a justice could perform his duty and still maintain absolute sterility and an unflagging devotion to the “facts” of a case. Souter contrasted Plessy v. Ferguson, the 1896 case that upheld segregation, with Brown v. Board of Education, the 1954 case that found it unconstitutional. “[T]he members of the Court in Plessy remembered the day when human slavery was the law in much of the land,” Souter said. “To that generation, the formal equality of an identical railroad car meant progress. But the generation in power in 1954 looked at enforced separation without the more revolting background of slavery to make it look unexceptional by contrast. As a consequence, the judges of 1954 found a meaning in segregating the races by law that the majority of their predecessors in 1896 did not see.”
Souter then asked rhetorically, “Did the judges of 1954 cross some line of legitimacy into law making, stating a conclusion that you will not find written in the Constitution? Was it activism to act based on the current meaning of facts that at a purely objective level were about the same as Plessy’s facts 60 years before?” In other words, how is it that one slate of justices could see nothing wrong with the concept of segregation, while another saw it as antithetical to equality?
In his 1921 “Nature of the Judicial Process” lecture series, Benjamin Cardozo provided a simple answer: “I think that when a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment.” Essentially, Cardozo says, the march of history and the evolution of human values necessitate that a judge be a product of her time and place. The corollary is that this necessarily entails making periodic adjustments to the strike zone (just as baseball has repeatedly done over the years).
A crucial aspect of the court’s mission is to uphold fairness; that is, its jurisprudence is supposed to work for us, not in spite of us. Yet as Souter demonstrates with his Plessy/Brown example, fairness -- and perceptions of fairness -- is a notion as fluid and ever-changing as society itself. If the Supreme Court is to maintain it, then it is ridiculous to force its members to play with a 1787 -- or even a 2009 -- rulebook.
For her part, Kagan acknowledges this type of reasoning, having written in 1995, “It should be no surprise by now that many of the votes a Supreme Court Justice casts have little to do with technical legal ability and much to do with conceptions of value.” Preserving the Supreme Court as a “judicial monastery” practically invites warped decisions that, while juridically sound, are divorced from the reality on the ground. It’s difficult to look past the practical, popular experience Earl Warren garnered as governor of California when looking at his court’s landmark Civil Rights decisions of the 1960s.
No one is suggesting that Kagan play by her own rules if and when she sits on the court. But we must expect her -- and her eight colleagues -- to consider the 300 million Americans who live and work beyond the walls of the court. These Americans, after all, still rely on the court to preserve their notions of what “America” is, and what it could and should be.
Katrina vanden Heuvel
| June 28, 2010; 5:16 PM ET
Categories: vanden Heuvel | Tags: Katrina vanden Heuvel
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