Monday, January 05, 2015

Justices, Referees, and Umpires: The Role of Discretion in Sports and Supreme Court Decisions

by Eric Segall

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.


Joe said...

I'm a baseball fan. The changing strike zone and the "compliment" that "he might be wrong, but he has been consistent" alone made that umpire analogy a problem.

"just as baseball players and many fans know that umpires over time have interpreted the strike zone
differently in response to changing aspects and contemporary understandings of the game, so too do lawyers, judges, and ordinary citizens know that the faithful application of constitutional principles to new and specific circumstances demands attention to evolving social context"

Joe said...

"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."

Why not just say it's about what they eat for breakfast? This comes off as a silly reductionist exaggeration. Law is applied by human beings. Recently read a good article on how emotion affects the law, it isn't merely reason. But, it isn't merely about emotion.

This sort of all/nothing rhetoric to me is very concerning.

Shag from Brookline said...


"And they do it all without instant replay."

But unlike umpires or referees, the Justices have the benefit of substantial time periods (following trial in a lower court and intermediate appellate review), parties' briefs, amicis' briefs (in ever increasing numbers), oral arguments, conferences, etc, to mull over what umpires or referees call on the ground in real time. If oral arguments were televised, perhaps the viewing public might get some idea from instant replays of a Justice's body language on how that Justice might vote. Instant replay in sports can fairly quickly correct an obvious error by an umpire or referee with public views of what the umpire or referee views. Alas, the "facts" before the Court may not be the full "facts" on the case being considered. (See, for example Balkin and Levinson's Constitutional Commentary on the "facts" in Marbury v. Madison, including the role of CJ Marshall when Secretary of State under John Adams connected with the controversy.)

Paul Scott said...

Nothing above said anything about "emotion;" the distinction being drawn was one of personal beliefs vs. body of case law. I don't think many have objections to the idea that a Justice's personally held beliefs strongly influence - if not almost completely control - case outcomes. That does not mean that the decisions are emotion based. They are reason based, but the reasoning is much more personal than is generally given credit.

I think two things of the subject:

1. legal realism is almost certainly correct and more study should be put into statistical case outcome modeling;

2. from a philosophical perspective, legal realism is boring. Most people, myself included, prefer to think of the law as a body of relevant work with interplay among cases, scholarly work and new understandings/cultural norms directing - or at least strongly influencing - the reasoning of new cases. That is far more interesting than legal realism followed by the use of case law as post hoc justification.

Eric Segall said...

Joe, I write about my legal realist views so that people can fully grasp how little a role law actually plays in generating decisions at the Supreme Court. I'm not sure that is an "all or nothing" statement just an accurate descriptive account that should be taken seriously given how much power the Supreme Court wields. Law is not completely irrelevant given the Justices use the vocabulary of law to explain decisions. But, in the end, the decisions are complex aggregations of values writ large in a way meaningfully different than how other courts operate.

egarber said...

Three points:

1. Though it’s obvious that personal values influence justices, I think it’s important to make distinctions between different forms of human engagement and influence. On the one hand, judges are philosophers, which isn’t a bad thing imo, since philosophy is a discipline that can be measured for consistency and predictive value. On the other, when judges appear to simply be fishing for results, we are rightly suspicious and critical of the associated philosophical inconsistencies. In the context of the referee analogy, I guess this is the difference between a ref who generally lets the teams play, versus one who only calls fouls against a despised club.

Though I suppose some feel “philosopher” smacks of power-hungry activism, I see it as the opposite: perhaps the intended mechanism for judicial independence.

2. Since you’re talking about the NBA, I’ll just say go Hawks! 

3. Since you’re talking about refs, what the hell was that “pick up the flag” crap in yesterday’s Cowboys / Lions game? Jeesh.

But I digress. :)

Eric Segall said...

Egarber said: "Since you’re talking about the NBA, I’ll just say go Hawks!" Do not, do not, do not be suckered in for the only possible ending is heartbreak.

egarber said...

Good one.

I don't have unrealistic expectations, since I realize we'll top out somewhere short of the ultimate goal. But hell, to reach the conference finals would be stellar for this franchise.

The Hawks have drawn me to the NBA this year, because they play more like a college team. No real superstars, so the dynamic is ball movement and defense -- all the stuff the NBA often lacks, imo.

Shag from Brookline said...

Opinions of some Justices may include "law office" history. With Justices as philosophers, might we expect "law office" philosophy? Justices trained in the law may have inadequate interdisciplinary skills/disciplines in history or philosophy. (As to history, see Heller, both majority and dissenting opinions.)

Joe said...

Paul Scott, the article reference was meant to note the complexity of judging, not to say that the OP was all about "emotion." Still, the OP noted:

"personal values, taste, and life experiences of the Justice" was a major factor. I don't think it is true that "emotion" has "nothing" to do with such things.


An "accurate" expression to me is that rulings of the USSC factor in all those things listed. Thus, e.g., a large segment of the rulings are unanimous or have six to eight votes. The "text of the Constitution" etc. repeatedly form an sort of Overton Window here.

There are certain basics that "personal values, taste, and life experiences" will not determine here. If you put Scalia or Sotomayor in another nation's system, with a different constitutional text, they would in many cases rule differently. etc.

It is perfectly fine to note that the life experiences etc. often matter. But, you went a step further and like in your abortion posts you are to me too heavy-handed. I don't think this is a necessary correction. To me, it's an overcorrection.

BTW, the picking up the flag was bad, but games tend to have bad calls. Detroit and Dallas had more to do with the result.

Anonymous said...

I find it ironic that Eric considers this a "legal realist" post because realistically it is exaggerated. The exaggeration lies in the overstatement in the amount of disagreement there is between judges. It is true enough that some areas of the law, like the 4th or 8th amendment, actually invite the personal and subjective opinion of the judges. But when we turn to other areas, such as many cases involving statutory construction, there is no disagreement on the law. SCOTUS does come up with 9-0 opinions. Even among lower courts there is generally widespread agreement.

Because the law in America is an adversarial system and because appeals courts generally deal with issues beyond the normal it is easy to overstate the amount of disagreement in the system. I actually think that most of the time Justice Roberts is correct in his balls and strikes analogy. People's love for disputation and argument blinds them to it.

Eric Segall said...

James is right that the Justices often agree on issues. But that is due to a host of factors unrelated to law per se. Other judges are constrained by either appellate review or re-election but not the Justices. Having the last say really does make a difference when combined with life tenure. Wouldn't you do what you thought was best all things considered if you held that position (if you cared enough about the issue).

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