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.
- 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.
- 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
- It’s an eight person body that deliberates amongst itself, not simply a unitary executive that unilaterally issues rulings.
- 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)