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By shimes, August 14, 2010 5:07 pm

Ok, just hear me out on this one.  One of the blockbuster cases of last term,  McDonald v. City of Chicago is the NRA’s big case against Chicago’s ban on handguns, the follow up to 2008’s District of Columbia v. Heller, where the Court first found an individual right to bear arms in the text of the Second Amendment.  To get there, Justice Scalia used a self-defense rationale to buttress his textual reading of the Amendment—which, to be frank, is so grammatically confusing that it’s essentially a Rorschach Test.  The controlling opinion, concurring opinions, and dissents in Heller were basically a grammar nerd fight over the syntactical meaning of commas, the difference between operative and prefatory clauses, and whether commas within absolute clauses determine which descriptors govern nominatives.   Hell, the Second Amendment signed by Congress is not the one ratified by the states.  Nonetheless, Scalia’s controlling opinion held that in federal enclaves, like the District of Columbia, there is an individual right to bear arms.  But not an absolute right, meaning that guns can be regulated but not banned.

Notice that Heller only applies to federal enclaves.  This is because in an 1833 decision, the Court held the Bill of Rights pertains to the federal government but not state governments—so the Constitution may forbid federal encroachment on the Bill of Rights, but the states were still free to.  Then in the 1890s, the Court reversed track and developed the doctrine of incorporation to apply certain amendments to the states.   In other words, the Court found that the newly-passed Fourteenth Amendment says the states can’t abridge certain rights found in the Bill of Rights. But not all rights—the rights incorporated against the states are decided on a right-by-right basis. 

There are two ways to incorporate rights against the states, both of which are found in the Fourteenth Amendment.  One is the Privileges or Immunities Clause, which says, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In other words, a state can’t take away fundamental rights guaranteed to all U.S. citizens. 

The other is the Due Process Clause of the Fourteenth Amendment.  The DPC says that a state cannot “deprive any person of life, liberty, or property, without due process of law.”  Basically, this means the same thing as the PoI clause—a state can’t take away fundamental rights guaranteed under the Constitution. Since 1873, the Court has incorporated rights through the Due Process of Clause of the 14^th Amendment (the famous Slaughter-House cases).

So, what’s the difference, as long as fundamental rights are incorporated against the states?  Well, the Privileges or Immunities Clause applies to “citizens,” whereas the Due Process Clause applies to “persons.”  Even John “Torture Memo” Yoo agrees that Due Process gives noncitizens many of the same rights as U.S. citizens under the Fourteenth Amendment.   

Why is this important to the NRA gun case? Well, in McDonald, a five justice majority agreed that the Second Amendment is incorporated against the states.  However, only a four justice minority agreed that the Second Amendment is incorporated through the Due Process Clause.  Justice Thomas applied the Privileges or Immunities Clause—which no other justice has done in 137 years!  Thus, there’s no controlling majority that says the Right to Bear Arms is guaranteed to persons. There’s only a majority that says the Right to Bear Arms is guaranteed to citizens.

The upshot is this:  Had Justice Thomas just applied Due Process like every other justice in the last century and a half, the Court would have likely guaranteed Second Amendment rights to persons—including, based on precedent in other incorporation cases, illegal and legal aliens. (Caveat: there’s some dicta in Justice Alito’s opinion suggesting the Right to Bear Arms is less than a fundamental right, and nobody is exactly sure what’s going on there).  So, hypothetically, if, say, Arizona wanted to pass a law that legal aliens can’t have handguns, legal aliens would have a pretty good argument that such a law is unconstitutional.

But it looks like Justice Thomas’ zombiefication of the Privileges or Immunities Clause stopped that.  Personally, I like Thomas’ jurisprudence.  I don’t agree with very many of his outcomes, and I find his personal story of racial resentment quite disgusting.  But, he’s the only truly iconoclastic thinker on the Court. He’s not afraid to stop splitting hairs and completely rethink constitutional interpretations and tests that just aren’t working. 

Still, I can’t say I’m onboard with Justice Thomas here, though.  I’d like to see the broadest interpretation of the Bill of Rights possible.  If the Constitution is a document of inalienable rights that we want other nations to aspire to, then the Constitution is a human rights document as much as a legal document.  This means that we should not be afraid to apply the Bill of Rights to all people falling under our laws, not just as “special privileges” for Americans.  The Bill of Rights are not some legal technicalities to be exploited by greasy haired defense lawyers; they create a system of fairness that, hopefully, convicts the guilty, frees the innocent, and keeps the police state in check. 

So, by my estimation, if Governor Brewer and Sheriff Joe want Arizona police to pull over American citizens and legal aliens for Driving While Brown (excuse me, “reasonable suspicion of being illegal”), then the well-pigmented of Arizona should be able to stand up for their freedom.   In fact, if the Minutemen and other “citizen militias” have the right to secure our borders with their God-given constitutional right to bear arms, then it’s only fair and just that brown-skinned people have the right to protect themselves with glocks in their gloveboxes, just like the NRA wants for its membership.  As Justice Scalia reasoned, self-protection is what this is about, right?  Somebody get Val Kilmer on P90X, because I see a modern-day adaptation of Tombstone in the making.

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By shimes, March 21, 2010 10:10 am

The scariest image of two cute little girls since "The Shining"

It looks like the Supreme Court is finally going to weigh in on this Fred Phelps business.  You know Fred Phelps as the “God Hates Fags” nutjob from the Westboro Baptist Church in Topeka, Kansas.  Fred doesn’t just hate “fags”; he hates “fag enablers,” a corollary of which is that God punished America on 9/11 for tolerating homosexuals.  This is why Fred thanks God for “dead soldiers.”  It’s a string of non-sequiturs, but really, how far is this from the Dinesh D’Souza argument—or, as Stephen Colbert put it, “what other cultural editing notes should we take from the terrorists?”

Anyway, I have been protested by Fred Phelps.  Well, not me specifically, but the University of Kansas School of Law graduation is always protested by the Phelps clan.  To be fair, Fred has grown so bored with protesting the “KU Law Fags” (he seems to mean every KU law grad, not just the handful of gay ones) that he sends the B-team.  He also protested a ballet recital I went to at the Lied Center.  Apparently, ballet attendees are per se gay, even those of us in attendence who aren’t actually homosexuals . 

And then there was this awesome scene outside Lawrence High School in 2004 on opening night of the LHS production of The Laramie Project.  The Laramie Project is a play about the aftermath of the death of Matthew Shepard, the twenty-two year old gay man tortured to death in Wyoming.  The play features Fred Phelps protesting Matthew Shepard’s funeral with his standard-issue “God Hates Fags” signage.  And, of course, Lawrencians showed up to protest Phelps, who was protesting the play.  So, in a single scene, you had people protesting Fred Phelps who was protesting the play in which Fred Phelps is a character protesting a funeral.  Charlie Kaufman, we await your screenplay. 

This website gives you a terrific rundown of the history of Fred Phelps, who was actually a lawyer before taking on a new life in his cult church.  Phelps was an honored civil rights attorney before a brutal, bizarre cross-examination of a court reporter, in which he called her a “slut” and relentlessly badgered her on the stand.  Some law professors at KU will talk about Phelps, who by some accounts is actually a very good lawyer.  The takeaway is that Fred Phelps is very attuned to the legal particulars of his protests and the laws restricting his free speech at soldiers’ funerals.     

In fact, Fred Phelps may very well win (his family is full of lawyers, and they represent him in court). My constitutional law professor, Stephen McAllister, testified several times in front of the Kansas Senate, warning them that the Supreme Court is very wary of “buffer zones” in First Amendment cases.  McAllister then advised the legislature on crafting a bill that would pass constitutional muster—which served as a model for the Maryland law before the Court now.   Now, as predicted, these funeral protest laws are coming before the Court. The First Amendment Center has a great rundown of the legal history of the case.  Because Phelps won in the Fourth Circuit, the fact that the Court took the case at all may not be a good sign for the Westboro Baptist Church.  Still, if you thought that KU v. K-State in the national semis is the dream Kansas-on-Kansas smackdown, I offer you Kansas Legislature v. Phelps.

*Update 3/21:  Scratch that “dream semifinal” bit.

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By shimes, January 28, 2010 4:43 pm

Justice Sotomayor throws a high hard one at borderline retarded death row inmates represented by court-appointed rookie attorneys who ignore the basic rules of defense lawyering.

Overlooked in last week’s hubbub over Citizens United was Obama nominee Sonia Sotomayor’s first majority opinion on a criminal procedure matter.  This is no small deal:  Liberal legal commentators warned Democrats that Sotomayor—a former prosecutor—has an overwhelming appellate record of upholding government action in criminal cases.  So it should come as no surprise that Sotomayor’s opinion in Wood v. Allen upheld the death penalty sentence of a defendant represented by a court-appointed  first year lawyer who, um, chose not to pursue and submit mitigating evidence of the defendant’s borderline retardation. (This is a standard “Just because I had ineffective counsel, that doesn’t mean I should be executed”, Strickland v. Washington case.)   

My problem isn’t with the Court’s ruling (other than the fact that the Supreme Court seems unalarmed by the extraordinary narrowing of Constitutional habeas review, especially when it means that the state is putting more of its citizens to death under auspicious circumstances).  My problem is that Sotomayor missed the whole point of having the Supreme Court decide an issue. 

One of the primary purposes of SCOTUS review is to clarify the law when separate circuit courts interpret statutes differently.  Here, the Anti-Terrorism and Effective Death Penalty Act (AEDPA) has two provisions for how to deal with federal habeas review in death penalty cases:  One that calls for action when the state court was unreasonable in its ruling, and one that says the defendant must rebut the presumption that the state was correct by clear and convincing  evidence.  Do you apply both?  Do you get to choose one?  Under what circumstances?  The Eighth and Eleventh Circuits apply both rules to all petitions, and the Third and Ninth Circuits say that the different rules apply to different circumstances. 

So, this is the when the Supreme Courts steps in to say who’s right.  Except when they don’t.  Even though about half the oral argument in the case was spent clarifying and narrowing the case to this question, Sotomayor’s opinion doesn’t answer it.  Her holding, which six other justices signed onto, simply said, hey, the borderline retarded guy doesn’t win either way. 

Well, thanks for that, J-Lo, but you didn’t help us out very much.  The Eighth Circuit is going to keep doing its thing, the Ninth is going to do the other thing, and nothing changes.  See you in another couple years when some other guy gets put on death row because his inexperienced, overworked public defender screws up.

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By shimes,

By now, you’ve heard about the Supreme Court’s totally ballsy ruling last week in Citizens United v. FEC, in which the Court held that corporations are people, money is speech, and therefore limiting corporate contributions to political groups violates First Amendment protections of Free Speech.  Some of these principles had been established before Citizens United, but their application here pretty much abolished campaign finance reform.  And, really, as much of a stretch as I think this is (especially for a Court that so literally and narrowly reads defendants’ rights in the Fourth, Fifth, and Sixth Amendment), well, I can’t get too mad about the substance of the decision.  Look, if liberals want to the Courts to interpret the Constitution in their favor, then win some presidencies and appoint more liberal judges—and quit being such wussies when it comes confirmation time.

The thing that makes me really steam-out-the-ears mad about this decision is the sheer hypocrisy of the Roberts Court’s procedural principals.  And make no mistake, one of the first things we learn in law school is that the side that controls procedure wins the substance.  Let’s review how Citizens United got to the Court, shall we? 

The political activist group Citizens United sought to air Hillary: The Movie, an anti-Clinton “documentary” on video-on-demand cable services.  The McCain-Feingold Act bans certain corporate-funded paid television time immediately before elections, and it also requires disclosure of corporate sponsors of election advertizing.  Sure enough, Citizens United took a ton of corporate money, meaning that Hillary was banned from cable on-demand.  During oral argument for this case last term, Citizens United argued for a narrow interpretation of the law to overturn the ban on Hillary, either by reading the statute not to mean “video on demand” or something along those lines.

During oral argument, the government’s lawyer defending the law, Deputy Solicitor General Malcolm Stewart, royally screwed up by suggesting that the government could regulate the publication of books prior to an election.  (For the record, Alito nailed him with this hypothetical, but Stewart could have easily deflected the question by using the Court’s distinction between political speech and commercial speech.)  This led the Court to postpone ruling on Citizens United to hear briefs on a question not even raised by the lawyers—whether to declare corporate funding of political advocacy groups who advocate for candidates as protected speech under the First Amendment, and thus could not be banned or even limited.  These questions had already been decided—even as recently as 2003.   

So, to sum up, here’s what the Court did:  Overturned a century’s worth of legal precedents on free speech, declared unconstitutional a bipartisan congressionally-passed law, stretched the text of the Constitution to declare money to equal “speech” and corporations to equal “we the people”—and in getting to the that ruling, answered Constitutional questions it didn’t need to answer, answered far more broadly than it needed to decide the case, and had the case re-heard because even the lawyers themselves didn’t think the Court would consider doing what it did.

In other words, you want ACTIVIST JUDGING?  That’s activist judging if ever an activist judge judged.  So, for all you I HATE ACTIVIST JUDGES haters in the house, you have to ask yourself:  Do you really hate “activist judges,” or do you just hate judges that rule in ways that don’t comport with your political views?  And if you still say you hate activist judges, then I patiently await your condemnation of the wholly radicalized Roberts Court.  It’s that, or you’re a raging hypocrite and all the talk about “Judicial Restraint” and “Judicial Deference” and “Constitutional Avoidance” was just a bunch of hot air and your jurisprudential theories are just as compromised by politics as those you criticize.

The Federalist Society types will no doubt argue that this judgment was necessary to expand Free Speech, and we can deal with the odd fact that conservative justices have worked to limit the freedom of speech for living, breathing human beings while expanding it for legal fictions.  That’s fine—there’s contradictions in every ideology, and sometimes you have to reconcile them after-the-fact.  But what gets me is that this is the same kind of Warren Court-ish behavior that conservatives have rightly decried as intellectually dishonest, thus completely undermining their whole rationale for, you know, hating on Sonia Sotomayor.

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By shimes, January 18, 2010 8:49 pm

I told him the Chief Justice was like the President's umpire, but he wanted to make sure he's still the Decider. I told him he'd be the Deciders' Decider. That seemed to work well enough.

*There’s a lot (too much!) to digest about this article, but I think it’s illuminating to discuss why the Chief Justice John Roberts’ Justices-as-Umpire analogy fundamentally misrepresents the role of the Supreme Court.  I hope this discussion is a fun way of exploring the issue, as is this article I wrote for Flak Magazine two years ago. 

The Yale Law Journal has a forthcoming article from YLS ‘10 and YLJ Articles Editor Aaron Zelinsky, entitled “The Justice as Commissioner: Benching the Judge-Umpire Analogy.”  Zelinsky also posts legal commentary at The Huffington Post, where I also discovered he was a clerk for the Chief Justice of the Israeli Supreme Court.  Zelinsky’s article has gathered a little bit of blogo-buzz because it was mentioned by SCOTUSblog, which does for the Supreme Court what combining the IMDB and Roger Ebert’s site would do for movies. 

To be clear, I’m with Zelinsky on his most basic point—that John Roberts is full of crap (my analysis of why John Roberts knowingly, intentionally, and willfully misled the American public during his confirmation hearings can be found here).  Now, I understand that I went to a second-tier state law school and not the top-ranked law school in the country.  I get that. But speaking as both a former clerk for a trial judge and as ten-year varsity umpire, Zelinsky’s argument that the Supreme Court justice is like the Commissioner of Baseball is, well, kinda dumb.

First, Zelinsky argues that Justice Roberts “unmoored [the analogy] from its historical roots and firmly opposed to its original meaning.”  He makes his argument by combining two different ideas.  Zelinsky cites a Louisiana Supreme Court decision that says that judges shouldn’t be mere umpires, as in a wrestling match (more on that later)  Then he cites Judge John Milton Killits in Young v. Korrigan, who rejected the “sporting theory” of trial, arguing that a judge must be more than a mere arbitrator to rule upon objections to evidence” (emphasis Zelinksy’s).  As Professor Wigmore wrote in his influential treatise on evidence, sometimes judges must go beyond the text of the law to ensure justice—in other words, be an activist judge (emphasis mine). 

Next, Zelinsky cites a Justice Robert Jackson speech about Learned and Augustus Hand (yes, those are the greatest names in the history of jurisprudence), saying that you want from a judge is what you want from an umpire: “[to] call them as he sees them.”  Zelinsky correctly points out that Justice Jackson “sought to emphasize the impartiality of judges, rather than the degree of involvement they should have in proceedings.”  

But this is exactly Roberts’ point when he says that  “Umpires don’t make the rules; they apply them.”  Zelinsky makes a false distinction between the ideas of “judicial fairness” and “judicial restraint.”  In Roberts’ usage, they’re the same thing—a restrained judge is a fair one because a judge who goes beyond the rules substitutes his judgment for the law as written (Bruce Webber argues as much in a New York Times article Zelinsky cites for this article).  For example, the judicial restraint advocate would argue that because “the right to remain silent” isn’t in the Bill of Rights, the Supreme Court has no business saying this right exists (see Miranda v. Arizona, a landmark Warren Court “activist” decision).  In doing so, the Court isn’t acting fairly because it’s gone beyond the text of the Constitution for its decision.

The analogy to baseball is pretty easy to make.  Let’s say a team pulls off the hidden ball trick, and as an umpire I don’t think it’s sportsmanlike or “fair.”  Unless the pitcher balks or time was called, I can’t simply not call the runner out.  If I did, that would be activist umpiring—that is, substituting my own judgment about “fairness” for what’s explicitly laid out in the rule book.  Roberts doesn’t “unmoor” the analogy from its roots at all; he simply expounds a different judicial philosophy than Judge Killits. does (Make no mistake, though—John Roberts is one of the most activist justices in Supreme Court history).

So, onto Zeilinsky’s second point.  Though Zelinsky misreads Roberts’ judicial philosophy, he is right about the fact that the umpire analogy was directed at trial judges rather than Supreme Court justices.  His analysis isn’t entirely off: “Trial judges…make a large number of split second calls repeatedly throughout their careers on relatively settled issues of law,” like an umpire calling balls and strikes.  But trial judging is nothing like the crisp clarity of calling balls and strikes.  Those of us public school law clerks who have sat through marathon eight-hour sessions of testimony on, say, hotly contested questions about the retroactive applicability of zoning codes to Wal-Mart developments in midsize Kansas cities—well, let me tell you, that ain’t as clear as safe or out, fair or foul.

At most trials, judges don’t make a ruling once every minute or so on clearly contested questions.  You watch a bunch of testimony in which the attorneys grapple to assert their will (their version of the facts, their interpretations of the law) on the other side.  The judge is there to ensure that the verbal scrum is played by the rules.  Perhaps you can think of witness questioning as a series of pitches to a batter, but that doesn’t really capture the wrestling feel of a well-lawyered trial.  Good, aggressive lawyers will find out how far they can stretch the rules of evidence without having objections sustained.  In other words, the action in trials is messy, much more like line play in football (or the Louisiana Supreme Court’s wrestling analogy cited by Zelinsky). 

Sure, baseball umpiring can be messy, but you know exactly when you’re supposed to make a call and what the precise issue is (Inside or on the corner?  Did the runner beat the throw or not?).  Just like football officials could call holding on every play if they wanted to, and there’s a whole list of infractions to monitor, judges have a lot more room to interpret the rules than umpires.  Lawyers know this, which is why they test the boundaries of what a judge will allow.  Hearsay, incidental contact versus pass interference, Crawford exceptions, cut-blocking versus chop-blocking—the rules can be really murky, depending on the speed and quality of play.  Good coaches, like good lawyers, will do whatever they can do to get an advantage.  It’s the judge’s job to call a good game by establishing consistency based on how she interprets the rule book.  Interpreting pass interference is much more inexact than calling the strike zone, and the same goes for the “relevance” and “prejudicial” rules of FRE 401 and 403.

This brings us to Zelinsky’s central argument, that the Supreme Court Justice is not an umpire, but the Commissioner of Baseball.  His analogy is superficial at best.  I mean, shouldn’t this be obvious:  The Commissioner is, you know, one guy.  The Supreme Court is a group.  The Commissioner is an executive, and the Court is, well, a court.  I must be missing something.

So what are Zelinsky’s reasons for the “Justice as Commissioner” analogy?  First, he says that Justices and Commissioners provide guidance to lower courts.  That makes sense, I suppose, if the Commissioner is the high court.  But even then, high courts are groups.  No one guy gets to overrule judges.  That would be some form of totalitarianism, or an absolute or limited monarchy, or maybe the Constitution under the Unitary Executive Theory.  In all these forms of government, one guy, the chief executive of the organization, can’t be told by courts what to do.  The chief executive—you know, like the Commissioner of Major League Baseball.  The guy who negotiates tv contracts, works with the players union on labor disputes, and, in his least time-consuming job, maintains the umpiring crews.  The Commissioner can, apparently, tell the umpires to declare the All Star Game a tie from his seat in the front row, and he can advise the umps on how to call balks.  But, again, these are the actions of an executive with expansive powers, not an appellate court.

Second, Zelinsky says that the Commissioner, like justices, deliberate.   Which means that they think carefully about stuff.  And, as Zelinsky notes, they “give detailed explanations for their decisions, which allows others to use them for interpretive guidance.” 

Isn’t that like saying that Mel Gibson and John Daly are similar because they’re both entertainers who drink a lot?  I mean, of course, the Commissioner and Supreme Court justices think about things before they decide stuff.  I get what he’s saying—they both don’t make split second decisions.  But is that really the best distinction he can come up with?  As for the guidance piece, executives also issue guidance to subordinates on how to rule on stuff.  In fact, there’s a whole body of law dedicated to this idea:  Administrative Law.  That’s when the head of an administrative agency (usually part of the EXECUTIVE BRANCH!) issues guidance to subordinates on how to adjudicate, legislate, and enforce laws within the their specific area.  This head functions as the chief executive of the agency—sometimes she’s even a, you guessed it:  Com mis sion er!  We can assume, unless it’s Alberto Gonzalez, that the President and administrative heads think about decisions before they make them.  But that doesn’t make them a court.

Third, Zelinsky claims that the Supreme Court and the Commissioner of Baseball are similar because they take “countermajoritarian” action.  That’s a fancy way of saying that they make decisions the majority of their constituents aren’t going to like.  That’s another superficial distinction, but whatever.  The real problem is that Zelinsky’s whole analogy breaks down in his explanation of countermajoritarianism.  He says, “for the Supreme Court, this means striking down the will of the legislature.  For the Commissioner, this involves taking action contrary to the will of the owners.”

Dude, the owners elect the Commissioner!  Like how a board of directors elects a chief executive officer of a corporation!   The legislature doesn’t elect the Supreme Court!  It’s appointed by the President with the consent of the Senate!  That’s a completely different thing, isn’t it?  Being an elected executive by a board of a lot of people, versus being appointed by one guy? 

Zelinsky’s description of the Court’s and MLB Commissioners’ roles in racial segregation makes even less sense.  He tells how the Court overturned Plessy v. Ferguson with Brown v. Board of Education, thus integrating schools.  Then Zelinsky compares this action—an authoritative, law-making Constitutional decision—to Commissioner “Happy” Chandler’s “declarations” in support of integrating baseball against the owners’ will.  But this isn’t even close to the same thing.  Perhaps they don’t teach Marbury v. Madison at Yale—I don’t know, I went to state law school.  The Supreme Court exercises Judicial Review, meaning that the Supreme Court can declare the actions of other branches of government unconstitutional.  That’s why school districts could no longer have “black schools” and “white schools” after Brown declared “separate but equal” facilities as violating the Equal Protection Clause of the Fourteenth Amendment of the Constitution—the Supreme Court actually makes rules. 

The equivalent action by the Commissioner of Baseball would be if there were all-black teams and all-white teams, and the Commissioner—against the will of the majority of owners—would unilaterally assert that this violated The Major League Baseball Constitution.  And then the teams had to integrate their players.  Zelinsky points out in his Footnote 48 that “Chandler was more than a bit player in these historic events,” but that’s not the same as actually making a judicial rule-making decision.  Rather, he was like an executive, organizing behind the scenes and negotiating his position to change the organization.

Zelinsky’s fourth point is barely worth mentioning.  Here, he argues that the Commissioner and the Court both have rule-making power.  Ok, fine—but as we’ve already established, the Commissioner’s power is of the executive kind, not judicial (for a discussion of the history of the strike zone, check out this great 1988 article by Peter Gammons).  Zelinsky then analogizes the vagueness of Due Process and Equal Protection Clauses of the Fourteenth Amendment to the “Best Interests” Clause of Article II, Section 3 of the Major League Baseball Constitution.  Zelinsky seems to have skipped over the section (Article II, Section 2(A)) that says that the Commissioner is “To serve as the Chief Executive Officer of Major League Baseball.”  That, and the Best Interests Clause isn’t a substantive rule in and of itself like Due Process or Equal Protection.  Rather, it’s procedural—it merely grants the Commissioner broad executive powers.  They’re two completely different kinds of rules whose only similarity is vagueness.    

The final nail in the Commissioner-as-Court coffin is the fact that Commissioner Selig created a fourteen member “advisory committee” that will advise the commissioner on on-the-field matters.  It would be like a Supreme Court of Baseball Rules if it had rule-making power, which it doesn’t.  That’s still invested in the Chief Executive of Baseball, which is the Commissioner. 

So, if this attempted takedown of Chief Justice Roberts’ umpire analogy is so dumb, what’s my smart-ass alternative?  Well, I’ve got one for you:  The Supreme Court is most like the NFL Competition Committee.  I explain this toward the end of this article from two years ago, but I can give you the quick bullet points here. 

1.  The NFL Competition Committee is created by NFL Constitution as a body separate from the Commissioner’s executive functions.  Its sole purpose is to interpret rules—a judicial function.   
2. The Committee can also recommend new rules that have to be approved through legislative channels (an owners vote).  This is similar to how the Constitution works:  The Court interprets existing law, but if the desired result isn’t reachable with the law as written, the Court will issue a decision and sometimes recommend that Congress amend or add a new law
3. It’s an eight person body that deliberates amongst itself, not simply a unitary executive that unilaterally issues rulings.
4. Philosophy matters in interpreting rules.  The Committee’s deliberations are often marked by value judgments that guide interpretation (see this interpretation of the Illegal Contact penalty)