We are approaching the mid-point of the 2014-2015 Supreme Court term and things will soon heat up considerably. One of this country’s leading experts on the Court, Tom Goldstein, has said that the second half of this year’s docket may be “more important than any in the last fifty years.” By the time June rolls in, same-sex marriage, affirmative action, Obamacare, and abortion may all be on the agenda.
When the Justices eventually hand down those decisions, they will try hard to make it sound like law, not discretion, is the key element in how they ruled. Recently, Chief Justice Roberts said that he fears the American public … see[s] the Court as a “political entity,” and that is not an “accurate” description of “how we do our work.”
The Chief has been downplaying the important role that personal values play in Supreme Court decisions since before he was a Justice. In what has become an iconic moment in Supreme Court confirmation hearings, then-Judge Roberts used the inexplicably bad analogy between baseball umpires and Supreme Court Justices to avoid judicial responsibility. Roberts said that “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. . . . I will remember that it's my job to call balls and strikes and not to pitch or bat."
As many have observed, there is virtually no similarity between the rules of baseball and the laws the Court must interpret and apply. For example, the definition of a strike is described with precision in the official rules of baseball, and we have the technology to track exactly where the pitch is when it crosses the plate. Theoretically, major league baseball could turn over the question to a machine, and there would be no human discretion at all other than making sure the machine functioned properly. The same is true for close calls at the bases or whether an outfielder caught or trapped a fly ball. There are a few rules of baseball that do give umpires significant discretion but Justice Roberts referred specifically to balls and strikes in his confirmation remarks.
The rules that govern Supreme Court Justices in constitutional cases could not be more different. No machine or computer could define phrases like “equal protection,” “due process,” “unreasonable searches,” and “cruel and unusual punishment.” Discretion and judgment calls outside the rulebook (the Constitution) are necessary to make the system work and the system changes all the time. What “equal protection” meant in 1896 (“separate but equal” is valid) is not what the identical phrase meant in 1954 (“separate but equal is invalid”). The constitutional language doesn’t change but the Court’s interpretation does, and it is the interpretation that matters most and is binding on the rest of us.
Chief Justice Roberts was correct to look at sports for a useful analogy to the Supreme Court but he choose the wrong one. The better comparison would have been to the referees in the National Basketball Association (“NBA”) and the rules they are called upon to enforce.
The principal task of NBA referees is to call personal fouls on the players. Here is the definition of a foul: “A player shall not hold, push, charge into, or impede the progress of an opponent by extending a hand, forearm, leg or knee or by bending the body into a position that is not normal. “ There are also numerous and vague exceptions to the general rule.
This definition, unlike the definition of the strike zone in baseball, is not self-defining. What does it mean to “impede the progress” of another player? What does it mean to do so in a way that bends “the body into a position that is not normal?” Normal sounds a lot like “reasonable” and “unusual,” and other equally vague constitutional terms.
Here is some language from the exceptions to the general rule: “A defender may position his leg between the legs of an offensive player in a post-up position in the Lower Defensive Box for the purpose of maintaining defensive position. If his foot leaves the floor in an attempt to dislodge his opponent, it is a foul immediately…. Incidental contact with the hand against an offensive player shall be ignored if it does not affect the player's speed, quickness, balance and/or rhythm.”
These rules suggest that sometimes a referee must decide what the player’s intent was before correctly applying the personal foul rules (just as the Justices must do in 14th Amendment Equal Protection cases). The referee must also define words like “incidental” and “rhythm.” Although there are other NBA rules that allow for a more mechanical approach (whether a player's foot was behind the line on a three point shot, now settled by instant replay), most of what the referees do involve calling fouls and other violations requiring personal judgment. It would be ludicrous to suggest that personal discretion plays only a minor role in refereeing in the NBA.
Here is William Rhoden in the New York Times talking about NBA referees but he could be talking about Supreme Court Justices:
More than any other sport, basketball gives its officials the power to shape the tone and tenor of a game. This is especially true in the National Basketball Association…. [Some] N.B.A. officials …are almost as well known as the players. They have their reputations, their egos, their own styles. Most important, each has a philosophy of how the game should be officiated. As if players didn’t have enough to contend with, they have to adjust to officials from night to night. There are complaints from coaches and players about a lack of consistency, an unevenness in the application of the rules and lack of coordination among officials.
Just so with the United States Supreme Court. The nine Justices have different styles, different egos, different preconceived notions, and, most importantly, different “philosophies of how the game [constitutional law] should be officiated.” That is one of the reasons Justices Ginsburg and Scalia, though good friends, disagree over most constitutional questions they are called upon to decide. The results they reach are not derived from the “rules” they are asked to interpret but by their own personal philosophies.
Constitutional law as made by the United States Supreme Court is not about the lawyers, the text of the Constitution, or the rules of the game. It is now and has always been about the personal values, taste, and life experiences of the Justices.
And they do it all without instant replay.