John Roberts, Major League Umpire

On Monday morning, John Roberts, hopeful candidate for the most prestigious legal job in the United States, pondered life, the universe and everything about his judicial philosophy and came up with this gem inspired, no doubt, by Bull Durham: Judge as Major League Umpire:

Judges and justices are servants of the law, not the other way around. Judges are like umpires. 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 ballgame to see the umpire.

This is true, as far as it goes. But I have seen a lot of baseball games. And thus, have seen a lot of umpires who behave as if they are God. Perhaps because, at least on the field, they are. The anecdotes of umpires whose judgment calls made or broke a game unfairly, are legion. Certainly they are far too numerous to list, because they happen every day.

Unlike God, however, if an umpire allows his view to stray from the truth on the ground too frequently on the job, he can and most likely will be fired. True lovers of the game recognize that such partisan conduct, regularly shown, sullies the very art that they love.

In contrast, however, a sitting Supreme Court justice cannot be fired. Ever. No matter what he or she says or does. Thus, at least as far as the law of the land is concerned, a Supreme Court justice is indeed like God. Not just an umpire who serves only at the pleasure of the lovers of the game.

His use of this particular metaphor to describe his judicial philosophy is one of the reasons that John Roberts is of such concern to me, and should be to everyone. The analogy of a Supreme Court justice to a baseball umpire is both brilliant and disingenuousness. It is brilliant because, indeed, in the ideal world, an umpire is fair. He is impartial. He merely calls it as he sees it. It is disingenuous because, by evoking the stereotype of the ideal umpire, Roberts deftly avoids speaking about real live umpires and the many unhappy players and fans -- from little league to the major leagues -- they can and regularly do leave behind in the game.

Just as rogue umpires do, rogue judges can and (especially in the Fourth Circuit) do regularly exercise the power to say what the rules "really mean", and we all know that this judgment call is informed by the umpire's larger "game philosophy". Similarly, John Roberts took the opportunity to wow his detractors by likening judges to umpires who make sure "everyone plays by the rules", while deftly sidestepping the inarguable truth that justices of the United States Supreme Court do not merely enforce the rules, they *create* them, based upon the perspectives they bring with them about the role of the Constitution in how the game of life is played.

But most dangerous for the country, the power of a sitting United States Supreme Court justice fears no practical limitations -- whether legislative enactment or the Constitution itself - since they alone determine what the Constitution really means -- as umpires in the game of life.

The Constitution, in John Roberts' view, is not a living document. To hear him speak, the Constitution instead provides us with a a set of "rules" to be applied versus "standards" to be interpreted (The lawyers reading this will no doubt remember the billion "rules" versus "standards" we engaged in during law school.) The Constitution therefore can be handed out to each and every jurist much the way an umpire receives a copy of the rules of baseball, I guess.

Yet the Constitution, if it is anything, was most clearly intended by its framers to be a document of standards, not rules. Its design was and remains elegant and sparse, for a reason: it was intended to be a living framework for the law, reflecting the changes in American society itself over the millenia. Were it not, much of the law would be invalid because precedents going back to the Slaughterhouse Cases have routinely used contemporary thought and reasoning to construct rational and practical interpretations of the Constitution. Certainly, much of the Constitutional jurisprudence establishing the human rights of Black people and women would be invalid, since an express grants of rights for both groups are notably absent from that document, by design of the framers themselves.

Thus, if I assume that what Roberts said about how he views his role on the Supreme Court is true, his way of thinking is simply not the stuff of a Supreme Court justice. It lacks the expansive vision required to understand that a Supreme Court justice has the ultimate duty to define what the Constitution *means*. Writing the timeless words of Marbury v. Madison, 202 years ago, Chief Justice John Marshall that clear:

It is emphatically the province and duty of the judicial department to say what the law is.

By speaking of umpires and baseball, John Roberts clearly states an intent to retreat from his duty to interpret the Constitution, to say what it is. And therefore he legitimately deserves critical scrutiny from us all before being appointed to the exalted role of Chief Justice of the Supreme Court.

There will no doubt be much wailing and gnashing of teeth from various constituencies this week as they fight for what they contend will be the "death" of their pet set of rights if John Roberts is confirmed. From the abortion-rights groups, who continue to pretend they didn't lose arguments grounded in boundless personal liberty 30 years ago. From the environmental groups, who rightfully perceive a Lochner type mentality underlying Roberts' earlier decisions relating to endangered species. To even the parents of delinquent children, who no doubt see his willingness to uphold the arrest of a twelve-year old for eating a french-fy as the ultimate assertion of paterfamilias power from the bench.

But all of this gnashing of teeth and rending of garments appears to miss one of the strongest coalition arguments for not confirming Roberts, IMO: he is already promising to be derelict in his duty to say what the law is, unless it is written in crystal clear terms in the "rulebook", i.e. the Constitution itself. His baseball analogy is most fairly interpreted as a carefully-worded promise for strict constructionism, a return to original intent as much as possible to the extent that he humanly can accomplish it.

Well, as the framers including James Madison made clear, their original intent was to protect the fledgling country from what was, at that time, the only perceived threat: the threat of a government that impeded the private property and contract rights of individuals, and the presumption that the state was the most sure guardian of individual, personal rights. Even James Madison originally saw the Bill of Rights as merely a "parchment barrier" completely unnecessary to combat what *he* perceived to be the real threat of government. While to our benefit Madison's views evolved, as he saw the impact of the original system from the overreaching of politicians grasping for power, the school of legal thought grounded in original intent nonetheless remains convinced that the federal government is a usurper, an intruder, into "rights".

Of course, as those in the historically tyrannized minority will tell you, the states have proven themselves poor guardians of the rights of the dispossessed who were never intended to benefit from "original intent". And that it is the federal government, through the federal courts, that saved them from the "rules" set down by "original intent". Roberts' chosen approach to jurisprudence and constitutional interpretation creates the very real chance of destroying, if it ever finds itself in the majority, many of the rights all of us have taken for granted since Lochner v. City of New York was overturned, that case having confirmed early in the 20th century that there really is only one truly sacred cow in the United States Constitution: the right to unfettered profit through contract and property, even at the expense of human suffering.

Unfortunately, the damage already wrought on individual American lives through the similarly corporate elevation of the value of money and property over human needs that has been regularly engaged in by the other two branches of government (the Legislature and the Executive) since the ascention of George W. Bush is extreme. It leaves most real people facing a 3-2 pitch. They simply cannot afford to "strike out" merely because the court is umpiring against them based on a narrow, unrealistic view of Constitutional rights of individuals to protection from the tyranny of the hunger for power that even framers like James Madison realized, in the end, are not a game at all.