In an interview with Dahlia Lithwick, Erwin Chemerinsky advocates benching the Supreme Court’s “umpire” metaphor:
It is a grossly inaccurate description of what Supreme Court justices do. Supreme Court justices do not simply call balls and strikes. They determine the rules and the strike zone. Justices have tremendous discretion in the cases coming before them, and the descriptions of Roberts and Sotomayor portray it otherwise. Every Supreme Court decision makes the law. When the court decides whether states can prohibit marriage equality, that will make the law whichever way the court describes it. John Roberts and Sonia Sotomayor would have been confirmed almost no matter what they did at their confirmation hearings. Each gave the American public a very misleading sense of what the court does.
To be honest, I’d forgotten that Sotomayor recycled the umpire analogy. I did a quick review of her hearing transcripts to jog my memory, and I found a passage where she was directly asked about the analogy by then-Senator Herb Kohl of Wisconsin. I’d characterize her remarks as studiedly noncommittal:
Few judges could claim they love baseball more than I do, for obvious reasons. But analogies are always imperfect, and I prefer to describe what judges do, like umpires, is to be impartial and bring an open mind to every case before them. And by an open mind, I mean a judge who looks at the facts of each case, listens and understands the arguments of the parties, and applies the law as the law commands. It’s a refrain I keep repeating because that is my philosophy of judging—applying the law to the facts at hand. And that’s my description of judging.
An answer which leads off with “analogies are always imperfect” is hard to equate with Roberts’s eager effort to sell himself as Mr. Moderate, so I think history will rightly associate the analogy with him. Of course, the crucial point is that neither justice is simple enough to actually believe in the “umpire” model. Justice Brennan, in fact, dismissed that idea way back in 1980: “Under our system, judges are not mere umpires, but, in their own sphere, lawmakers—a coordinate branch of government.” But unlike Roberts, Sotomayor made her skepticism very public. There was her 2001 remark about how race, cultural backgrounds, different life experiences, and psychology influence judges’ outlooks (ridiculed by conservatives as the “wise Latina” speech); her 2005 admission that a “court of appeals is where policy is made”; and President Obama’s statement (before her nomination) that he valued empathy in judges—a remark from which Sotomayor, during the hearings, would later disassociate herself.
Moves like that, although necessary to win confirmation, amount to a sort of intellectual retreat. And in that sense, they have an unfortunate impact on our discourse about the judiciary. It would have been more exciting, more revealing, and (to use Chemerinsky’s term) less misleading for Sotomayor to respond with a full-throated defense of the role of empathy in the judge’s interpretive task—and, to complete her case, an attack on the silly “umpire” metaphor that has caused so much confusion.
Could it be self-interest that prevents more judicial figures from speaking out in this way? As SCOTUSblog pointed out at the time, the senators on the committee were not so shy. Many of them specifically mentioned the analogy at Sotomayor’s hearing, often in order to attack it. But judges and justices might be more reluctant to do so, figuring that the idea of an umpire probably seems eminently reasonable and appropriate to the public. There’s also the familiar worry that Americans might cynically conclude that judges—even Supreme Court justices—are no more than “politicians in robes,” leading to irreversible loss of prestige for the institution, and its eventual decay into a nine-member Congress. If justices abandon the comforting umpire image and start to openly embrace admissions like Sotomayor’s, that fearful day could arrive much sooner.
Such hypothetical fears, however, seem quaint compared to the reality of jurisprudence under the Roberts-led conservative majority. That legacy, too, has damaged the Court’s prestige—and no less so because its advocates were disingenuous about their ambitions. (As Sen. Whitehouse summed up the Roberts Court in 2009: “Some ‘balls and strikes.’”) Clearly, these judges have more than a straightforward reading of the Constitution in mind. They have a distinct point of view about American politics. As a method of judicial interpretation, examining those worldviews (and their intellectual context) is quite promising. It helps to illuminate changes in jurisprudence and departures from precedent that are otherwise difficult to explain, and it doesn’t necessarily follow that the enterprise of constitutional interpretation is thereby reduced to mere political spin. There is, and almost always has been, a balance—because the enterprise has always been, to some extent, a political one.
That admission is a first step in understanding where the Court stands and where it might go next, even if it brings us closer to admitting that the justices are, after all, political actors. The only reasonable response to this fretting, it increasingly seems, is to say: Well, of course they are. What do we gain from denying that reality—especially since the current majority so clearly relishes the role?