The balls and strikes metaphor was misleading, implying lack of bias. Therefore it should have been shocking when (now) Chief Justice Roberts pitched it before the Senate Judiciary Committee. It should be even more shocking that, even today, his metaphor is treated as wisdom rather than an evasion.
People who watch baseball know that umpires often have their own strike zones – listen to the play-by-play commentary on televised ball games, for example. When Roberts compared judges to baseball umpires during his confirmation hearings, members of the Senate Judiciary Committee should have asked him to describe his own personal strike zone. Surely, the current Judiciary Committee should have posed the same question to baseball addict Bret Kavanaugh.
In both cases, the honest answer would have been "to the right of the center of home plate".
1
There's a fourth option for judges and umpires alike:
"I call 'em for the team I like, and against the team I hate."
That's often how "justice" works in Trump's America.
1
How far back does that umpire joke go back, I wonder. I first came across it in the mid-1970's in Neil Postman's Crazy talk, Stupid Talk (a book that deserves a wide audience these days). I vaguely recall something about the third umpire being immersed in Wittgenstein's philosophy.
I find it interesting when people try to invalidate the principles of our constitution based on a modern evaluation of the men who wrote it. All ideas, even great ones, come from flawed individuals. Do Democrats view The New Deal policies through the prism of FDR’s shortcomings which included appointing a KKK member and a segregationist to the Supreme Court, excluding African Americans from New Deal protections, support of the Mexican Reparation Program, refusal to invite African American olympians to the White House after the 36 Olympics, and holding Japanese Americans in enternment camps? Are these policies and laws outdated as a result of his racism?
Sometimes there are bright lines in judging, but those are easy to spot and hardly ever get to the Supreme Court. The "balls & strikes" metaphor is disingenuous, because it implies a simplicity that isn't there and an external standard that is somehow objective, measurable, verifiable, and unambiguous. But important decisions come when principles of the Constitution are in conflict, for example between the 1st and 2nd amendments. If they have equal weight, there will be cases where where they resolve a conflict differently and that difference needs wisdom, compassion and detailed analysis to balance the principles embodied in the amendments.
To pretend otherwise is unprofessional.
We know that Justice Thomas needs new glasses. Time will tell about Justices Gorsuch and Kavanaugh.
1
Judges do not strictly follow the Constitution but decide on the basis of expediency.
Consider two rulings by former Supreme Court Justice, Hugo Black,
An excellent justice but still ruled on basis of expediency.
During the Vietnam War a young man wore a shirt that carried the message " [naughty word] the draft"
Arrested and convicted on obscenity charges, case went to Supreme Court. In the minority in a 5-4 decision Black voted to uphold the conviction saying the [naughty word] was too obscene.'
So much for Black's statement that the first amendment says "No law means no law"
Black voted to uphold the WW2 Japanese internment saying 'We were at war"
That is not an argument based on the Constitution but on expediency.
Black never expressed regret for his decision.
Justice William Douglas later said his vote to uphold was in error as did Earl Warren who as California Attorney General supported the internment.
A very inappropriate metaphor.
Grand slam home runs are obvious to everyone watching the ball game. Umpires don't rule against them.
SCOTUS justices have decided things that go against the obvious to anyone who has studied the Constitution and our society:
Corporations are not people and do not have individual rights.
Money is not speech.
A well regulated militia being necessary ... it's obviously not necessary.
The right to vote ... yes, it is in the Constitution, stop belittling it.
It's time to dump sports metaphors, and get non-partisan unbiased judges on the bench.
I take your general point, but I don't think all the founders agreed that African Americans "should" count as 3/5 of a person. Many of the founders despised slavery and reluctantly accepted the compromises the Constitution made with it to ensure that the southern states joined the union. In this way, as a much larger nation, we diminished the incentive of the great European powers to believe that they could come in and take us over. That's my understanding, anyway.
1
@John Actually, the 3/5’s comprise only describes how slaves were to be counted for purposes of congressional representation and taxes. It in no way implied that slaves were 3/5s of a person.
1
The problem is when the umpires aren't really invested in the rules of baseball, just the appearance of it. They've decided the winners before the game even starts; they just need to go through the motions to make it still seem like baseball. A kind of ingenious sophistry...
1
I hope and pray that all of our Supreme Court Justices are well schooled in what happened during the spiral of German judicial system circa 1930. Perhaps they can then see that pitch coming.
Interesting, but the Constitution, article 1, section 1, says nothing about ethnicity (except in the reference to "Indians not taxed"), nor does it define human, nor does deem any person to be a fraction of a human, nor does it or any other part of the original Constitution say anything about who has the right to vote (that is left, per section 4, for each state to decide).
One thing umpires, of any philosophy, must absolutely have is an accurate knowledge of the rules of the game.
2
One of the sublime beauties of the exquisitely balanced yet complex game of baseball is its ready extension to all realms of life. Almost everything can be illuminated and better understood by a baseball analogy.
The role of the district court judge is to call balls and strikes. After that, it goes to the court of appeals and then the Supreme Court. If the Supreme Court is calling balls and strikes, then it is only because it is tampering with the record in the case: something it is not supposed to do.
3
i think the remark that "it isn't a strike until i call it a strike" was made by bill klem, a great umpire of the 1940s. it was more pungent when klem said it than as part of a lame joke.
1
An interesting article, however, Ms. Boylan reveals her prejudices when opines without evidence that the Constitution has "bright lines originally imagined by our 18th-century founders" and in the same sentence attempts to diminish them for racial and sex bias. First, I have no ideas what their views of women and blacks has to do with the supposed "bright lines" of the 18th century. Second, she is just flat wrong and historically ignorant when she asserts the founders saw only bright lines in the Constitution. Just read the records of the Convention or the Federalist Papers and it is patently obvious that the drafters of the Constitution knew it was open to interpretation. How it was going to be interpreted and who was going to interpret it were discussed and debated then and it continues now.
2
Actually, the third umpire is a quantum mechanic who believes, in the orthodox interpretation, that no property of the approaching baseball is known until it is measured.
@Richard Haglund And since we cannot know both the velocity and the location simultaniously, we cant know if it is a ball or strike unless we turn off the radar gun. But we digress her point aboout the court!
Cute...the World Series must be in season.
Simply put, Cardozo's postulate should apply: INTENT of the law over the letter of the law. This mandates wisdom. Wisdom requires high intelligence, ethics, and knowledge (gained through a lifetime of hard work).
Sadly, judging at the highest level is best served by true polymaths. Those people are in desperately short supply. This "empirical" "pragmatic" "reality" is exactly why the U.S. is ruled by such a second-rate judicial system.
This dilemma is not cute. It is disappointing. The WS only goes so far to be a soothing diversion from the ugly truth.
2
A point of clarification: appellate judges, including those sitting on the Supreme Court, don't call "balls and strikes"; they review decisions by other judges, who call "balls and strikes." I like to think of appellate judges as those people sitting in the replay booth. They might look for "irrefutable" evidence that a call was wrong or they might look for "clear and convincing" evidence. These are like rules of appellate review. One of the biggest problems I see is that the Supreme Court does not appear to feel like it is bound by any rules of appellate review. As the Court of last resort, it often resorts to making up or ignoring the rules off appellate review.
3
"The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law."
Justice Oliver Wendell Holmes (1897)
The version of umpire joke I heard in grad school was actually about epistemology: I call them the way they are (positivist - reality is observable) vs. I call them the way I see 'em (constructivist - being aware of your own biases) vs. I call them, and THEN they are (post-modernist - reality is created by those with power). The point was that in a post-modern world, fact is no longer something you can independently observe, or even observe with an awareness of your biases. We are watching this version of "reality" play out all around us and it is a huge, huge problem.
1
If a case were easy to decide based on the law, it would never make it to the Supreme Court.
"originalism" is a sham ideology meant to roll back the new deal and the civil rights movement and anti-discrimination decisions
under the original constitution, white people owned slaves, and women couldn't vote.
@true patriot And it was amended to address those short-sighted beliefs.
@true patriot The New Deal was championed by a racist who was responsible for the enternment of Japanese Americans and who initially excluded African Americans from the New Deal.
The analogy is plainly false and misleading. The common law, which remains the bedrock of civil obligations throughout the English speaking world, was created entirely by judges and continues to be developed by judges. There is a fiction that the common law was “always there” and the judges just “ discover” it, which is complete nonsense. Legislation is often unclear and requires “ interpretation”, which is judicial lawmaking by another name. As for the constitution, that is almost open season for the judges, with only past precedent offering a restraint. No wonder we worry about who is sitting on the bench.
2
Missing here is the category of judges who will say whatever it takes to obtain the post they desire.
Or, in common parlance, a liar, a sneak, and an unctuous slimeball.
Hate to see such folks on the bench polluting a truly honorable profession in which so many are upright, clear seeing, and work so very hard at being fair.
2
There is a fourth way which virtually all recent republican justices follow: "I say I call them as I see them and then rule based on my ideology". Roberts lied, Alito lied, Kavanaugh lied, Gorsuch lied. They all said they'd rule based on the law and then when it came to render judgment they ignored the constitution and made up their own rules.
2
Someone should remind Clarence Thomas that according to the originalist thinking he would only be 4/5 of a Justice.
1
I always thought there was a more compelling explanation for why the "balls and strikes" analogy was wholly inapplicable to the Supreme Court, and that reliance on such comparison was nothing less than disingenuous.
Simply put, with few exceptions, umpires are basically "fact finders" -- e.g., did the pitch catch the plate, did the runner beat the throw-- while appellate judges are clearly not. In marked contrast, appellate judges interpret the law, relying on a fixed factual record which is established at the trial court level.
More significantly, it is pure fantasy to suggest, as many conservative jurists and commentators do, that the vague, open-ended and value-laden Constitutional terms that the Supreme Court is asked to interpret -- such as "equal protection," "due process," "unreasonable search and seizure" -- have a fixed or clear meaning, particularly as applied to novel situations in an ever-changing technological society.
I just wish one of the Democratic Senators on the Judiciary Committee could have raised such points in response to the "balls and strikes" fiction asserted by a John Roberts, Neil Gorsuch or Brett Kavanaugh.
In fact, I would suggest that any nominee who peddles such nonsense should be "tossed from the game."
3
At last!
Ever since Roberts was allowed to get away with his analogy between umpires and supreme court justices, I have been fuming over the general and uncritical acceptance of this patent nonsense.
First, most cases come before the supreme court because there is some problem with the law, either per statute or per precedent. Second, I would say that all who wear a judge's robe harbor a notion of "justice", either clearly conceptualized or inchoate. This is not a "liberal" fantasy—the attitude that it is better for a hundred innocent people be found guilty than one guilty person go free qualifies as a "notion of justice", if a rather horrifying one. Whatever it is, such notions it inevitably color the legal reasoning of a judge.
There are other things that color such reasoning, like wanting a certain outcome regardless of law or fact, and there's no shortage of evidence for such legal acrobatics from time to time on the supreme court (Scalia on Heller, for a clear example).
1
Beautiful!! wish you had kept going....Can't get enough baseball on a level that's comprehensible. Thanks.
Forget the Court. Amend the Constitution. Article Five, people. It's in our power to say what the laws are, not the Yale grads.
Start with abolishing the electoral college, and use that success for bigger things.
1
Through technology, we now know that emotions motivate our behavior and impact our attention, learning, memory, regulatory variables, goal priorities and social interactions. Furthermore, the feelings we experience are physical reactions to our emotions.
Meanwhile, our emotions – and therefore the decisions we make – are driven and even determined by our personal biases, beliefs, assumptions, expectations and values, which are formed as a result of our personal backgrounds and life experiences. The question not whether or not such things are impacting our decision-making, but how much our lack of self-awareness is skewing our perception of things, regardless of our intellect.
Our personal backgrounds have very much to do with our parents and how they raise us. Our life experiences are strongly associated with our personal choices in terms of what we do, if anything, to try and broaden our worldview. If our parents didn’t teach us to see things from other people’s perspectives, we either need to take it upon ourselves to learn such things or we live in a false reality that our perspective is the only perspective.
It’s been found that perceptions regarding morality and fairness are influenced by emotion to a far greater degree than are other decisions.
These are the reasons why emotional intelligence is so important. According to Daniel Goleman, author of international bestseller, Emotional Intelligence, emotional self-awareness is the foundation of emotional intelligence.
1
The Founders saw "bright lines"? Are you serious? I certainly hope not.
The empiricist is the practical choice and is tinted by the judge’s beliefs as a liberal, moderate or conservative. Originalism is not a good choice to view the Constitution because this school of thought is unknowable and not in touch with the idea that our Constitution is a “living document”.
2
You don't have it quite right, Ms. Boylan. Before calling balls and strikes, the umpire determines what the strike zone is. And that can change pitch by pitch, though not likely by much. That scenario gives credit to the constructivist position, but it applies more crucially to the definition of the strike zone than to the calling of balls and strikes. I think we have a pretty good idea of how Kavanaugh and his brethren on the right define the strike zone.
1
The analogy of an umpire's job in baseball to a justice's role on SCOTUS is akin to the Orville Wright's flight in the Kitty Hawk to astronaut Neil Armstrong's flight to the moon. The senate confirmation hearing for kavanaugh has demonstrated the fallacy that the SCOTUS justices are neutral officials. many of us who either studied history or appellate lawyers knew that one's political patronage or one's "judicial philosophy" usually controlled the outcome of a case. but the media and the elites enjoy the social construct that deciding legal issues arising in 2018 can be determined by interpreting a 250 year old document that was a political compromise from its inception and outdated in less than 100 years. the problem is twofold: our antiquated constitution can no longer really be amended; and we have unfortunately agreed as a society that these 9 people (and not congress) get to decide what is constitutional and what is not. no serious student of history can believe our founders intended this result.
18
@jim: You write:" ... the media and the elites enjoy the social construct that deciding legal issues arising in 2018 can be determined by interpreting a 250 year old document that was a political compromise from its inception and outdated in less than 100 years."
-Thomas Paine:
"As we are not to live for ever ourselves, and other generations are to follow us, we have neither the power nor the right to govern them, or to say how they shall govern themselves. . . . [It is] the summit of human vanity . . . to be dictating to the world to come."
1
@jim Actually, Jim, your last sentence is incorrect. The Supreme court's principal job is to decide what is Constitutional. That is exactly what the Founding Fathers intended.
2
I think we do ourselves a disservice when we even attempt to conflate what an umpire does (within the context of a ''game'') and what judges do. (within the context of ''lives'')
There is no ''call em' as I see em'' for judges when dealing with laws, and in particular when those laws affect the freedoms of people. (or even if they are deemed people, considering that three fifths proviso)
One wonders how a corporation is considered a person, money is free speech, or religious 'liberty'' can usurp or displace the human rights of a person, but they do.
Are those considered strikes or balls one wonders ... ?
109
Thank you, friend! I am often startled by the hyperbolic importance which some people put on sports to begin with. But analogizing umpires with judges is simply too trivializing for the awesome powers which, for better of worse, they hold over us.
25
@NM
Aye, I am getting a little sick of the sports analogies as well, but that is the society we live in, which also glorifies people of wealth as having substance over any other person.
Good to see you too friend and may I say congrats on your plethora of NYT picks in recent comments well done,
1
@NM Two thoughts: 1) This is the NYT, not a Law Review
2) We create images, and metaphors, as ways to think about things, but are, by their nature, as metaphors, imperfect.
another home run by Jennifer Finney Boylan!
4
"...men whom, we should note, agreed..."
I'm shocked that a Barnard professor of English would misuse the word "whom"! Or is it by definition correct when an English professor does this? They are, of course, the umpires/judges of our language.
3
Kavanaugh made a big deal about his knowledge and involvement in sports and stated that his role would be to "just calls balls and strikes". I wish one of the senators had asked him if he was aware that different ump have different strike zones and that the zones change during the game, particularly in the latter innings and with certain unruly players . He should have been asked to compare his strike zone to Ruth Bader Ginsburg's.
2
A baseball expression of "kill the umpire" has been shouted, written about and placed in song. Fan, short version of fanatic, brings passion, and, yes, sometimes hate with the use of that expression.
Baseball umpires (when video was not contemplated or used) made mistakes but over time probably the bad calls against one team was balanced by bad calls for the other team.
When a Justice strikes out, there is no one in the on deck circle to bat. The case is over. ..."Mighty Casey has struck out"...
Umpires have 162 games plus the play offs to get it right. The SC is where the final at bat takes place and the game is over, period. The score is posted.
No one died or lived a life in prison or became homeless due to a poor call behind the plate.
Balls and Strikes are not equal to life and death.
1
I like that Gorsuch, Kavanaugh, and Thomas consider themselves “originalists” when considering their decisions on the court. It means that they are not Republican or Democrat influenced in their decisions. They look to the past as antecedents for their thinking. The Problem is, they are very narrow in the criteria they use for presuming what the white wig crowd really intended when they constructed the Constitution.
2
An interesting piece, if a bit light on substance. The joke is a good framing.
I had seen the umpire's piece in the W. Post. Worth reading.
But this sentence needed fixing.
"If you believe “they ain’t nothing until I call ’em!” you’re not just a pragmatist — you’re an activist, or so conservative legal scholars would have you believe."
Should have been:
"If you believe “they ain’t nothing until I call ’em!” you’re not just a pragmatist — you’re a *conservative* judicial activist, one who pretends publicly to merely call balls and strikes, or so conservative legal scholars would have you believe."
There. Fixed. It. For. You.
KAVANAUGH Will call them as he saw his decision legalizing a return to the sale of automatic weapons after the Jim Brady law ran out. From the time that the Jim Brady law was in place, an Australian study showed that gun deaths decline both there and in the US. Kavanaugh's ruling on automatic weapons was a rapid rata-a-tat-tat. A mindless pulling of the trigger. Sending out balls and strikes faster than a speeding bullet. The justification was the vacuous statement that many people's owning automatic weapons justified their being made legal. Singularly the worst thing the GOPpers have done is to stack the courts with extreme political ideologues who will rule from the bench. Congress needs to retake the moral high ground by fashioning laws in comity (NOT comedy nor tragedy). And the Supremes? Who knows? I'd not be surprised to see Roberts issuing baseball helmets along with padding to wear under the robes. Who's next? The attorneys of course!
1
Brilliant, Ms. Boylan!
I am saving this piece, to be trotted out next time some judicial nominee goes on TV and insults our intelligence by giving us the usual line about aspiring to be just a li'l ol' umpire calling balls and strikes in accordance with rules written by others.
And how about them "emanational penumbras"?
2
A terrific metaphor and column.
Rudy Giuliani asserted that there is no truth until you decide whats true - what is somebody's version of it. It is a lawyer's argument, that both sides have a truth and the jury picks one.
But of course, neither lawyer or side in a court case has "truth;" they have an argument. That is the crux of the judicial world. There is law, there are facts and there are arguments - interpretations of law and interpretation of the meaning of facts.
Justices deal with ** arguments** not facts. They assign weight to facts and choose an argument, or often create their own argument in their opinion and dissent.
That is why Robert's balls and strikes metaphor rang hollow. Unlike Boylan's joke, Robert's wasn't admitting what he surely knows is true - that how you call 'em depends on how you see 'em and how you feel like calling 'em.
1
Actually, it was the legendary umpire Bill Klem who many years ago first said that pitches were nothing until he called them.
2
First, Abner Doubleday was not a founding father. But that is not my main point. In the founding of baseball Umpires did not call balls and strikes or outs, except if they were asked to because the two teams did not agree on the play. The only difference from the judicial system is that they did not hire lawyers.
My colleague Dave Chalmers has traced the provenance of this three umpires story back to an article by Hadley Cantril “Perception and Interpersonal Relations” published in The American Journal of Psychiatry, in August 1957.
It's even more complicated when the Republicans stack the federal courts with one-eyed umpires who are chosen because they see only the right side of the plate.
41
@Paul Andrews
Not only that, first they decide the shape and location of the strike zone. Corporations ("Corporations are people my friend'" Mitt Romney) have different strike zones than actual people.
1
A big difference between baseball and the SC is that balls and strikes are not reviewable. Th reason is that baseball realizes that there is not (yet) a way of calling them as they are - there is no objective reality because the strike zone is ill-defined and changes depending on the batter and stance and technology cannot define it perfectly. So a practical decision is made to go with the empiricist umpire, for the sake of expediency. But it does recognize that constructivism is being replaced by empiricism. Every SC decision is pragmatist/activist, despite the protestations of Scalia types to the contrary. Hence the fact that SC decisions are reviewable, despite the lip service paid to precedent - a reluctance to overturn a call. Unlike baseball though, expediency cannot supersede the need for social relevance of their decisions. The strike zone does change over time and the umpires must recognize that.
1
It 'strikes' me that the Supreme Court has too few women, and far too many....
let's say 'pitches out of the strike zone'.
1
The nomination of Supreme Court justices is filled with fear and loathing because of “penumbras.” Some justices can see them—or at least pretend to see them—while others don’t. In astrophysics the term denotes the space of partial illumination that surrounds the shadow of an eclipse, but in constitutional law it has come to refer to “implicit rights” found in the shadow of the Bill of Rights. Justice William O. Douglas explained that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” (I’m not making this up.) Some justices look at the Constitution and see only words on paper while other are mystics who claim to see penumbras emanating from the parchment. In reality, penumbras are devices for usurping the amendment process.
5
@William Case
'Mystic Penumbras???'
The following Require that POTUS, Congress, and the Court see the penumbras:
Article 1 Sec. 8 "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers ..."
Article 2 Sec. 3 "(The President) he shall take Care that the Laws be faithfully executed, ..."
Amendment 7 " nor be deprived of life, liberty, or property, without due process of law; ..."
Amendment 14 "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."
etc."
The specific actions and laws required are left to the 'penumbral vision' of future generations.
2
@Old Ven
Nope of the articles you reference have the slightest application to the issue. We are talking about the Supreme Court manufacturing constitutional rights. If it wanted, Congress could enact laws that, for example, granting won the right to abortion, but it hasn't done so.
The most glaring falsity of Justice Roberts's umpire simile is that the Supreme Court, unlike umpires, gets to choose which cases it decides. And by its decisions it sends messages to lawyers and lower courts which kinds of cases it wants to decide in the future. Roberts could not have been more disingenuous.
1
I thought this was an excellent overview of different ways of looking at our justices and justice system. It would have been even better without the gratuitous swipe at conservatives. That paragraph added nothing to the essay and probably lost a few readers. So unnecessary and a tad bit trite.
Good essay, unfortunate paragraph.
1
sure, it's the "intangible that defines what kind of judge, or umpire, you will be."
that must be how the french judges in the olympics get away with it all the time....
1
Yes judges in a sense call balls or strikes.
But everything called ultimately is determined by the state of consciousness of the judge or umpire.
They may be bright, intelligent and learned by conventional standards. But that doesn't mean they are wise.
Every ruling by the court involves some judgment regarding the meaning, scope and intent of an article or amendment in the Constitution.
And clearly the human mind can rationalize anything. A classic example was Citizen United.
The conservatives argued that the 1st amendment gave corporations the right to spend any amount of money to support or denounce individual candidates in elections.
And they could spend any amount to seek to persuade the voting public through ads or other means to vote for their candidate and policies.
Well, it may sound rational but the crucial question should be: is such a ruling wise and in the best interest of a supposed democracy. Or does it have an obvious corrupting or dangerous influence born out by life experience. Like shouting fire in a crowded theater.
When you give corporations and billionaires million dollar megaphones, the reality is they buy elections and get the policies they want. And small voices are squelched.
The repub justices may appear rational, but seldom are they wise and just in regard to the effects of their judgments on little people. They always call it for the oligarchs.
1
Thanks Jenny! Love the Dan Cohen reference! Go Mules!
I know there's no Santa Claus, but I'm waiting for a non-denominational Supreme Court Justice.
Religion needs to take a recess.
2
And therein lies the problem Maureen, the strict categories which so many want to classify and then neatly place into a pigeon hole. You didn't mention the existentialist umpire, what did he say? We are not born hardwired with a particular philosophical worldview. We're creatures born from a mixture of the four philosophies which make up our individual world views. It's not until we start experiencing the world for ourselves do these philosophies start to develop and we're able act upon them. They are further honed and tempered by our education and the environment in which we live. The world is gray place and it's our combined intellect which helps sort it out and make sense of it. It's not perfect, but it's all we have. No one wants to be on the short end of the stick when elections are held and the people have spoken, Maureen. The cognitive dissonance one experiences when this happens is crushing but we're all going to end up in the grave anyway, so what does it matter? That's the existentialist umpires opinion!
1
Yet another misinterpretation of Originalism by invoking the three-fifths and male landowner provisions. The Framers included an explicit amendment process by which future generations could modify the Constitution to better fit the times. Both provisions cited have since been invalidated, but most of the Framers' original language has remained intact due to its timelessness and appropriateness.
BTW the three-fifths provision was inserted by NORTHERNERS who didn't want slaves to be counted when apportioning Congressional seats. It was the Southern representatives who wanted African-Americans counted as full human beings.
I was expecting to hate this column but was pleasantly surprised instead.
The only quibble with the analogy I would make is that umpires are not allowed to make up the rules as they go along. They have to enforce even dumb rules and it is up to MLB to change them (as happened with the NFL "catch rule").
The Supreme Court should not be in the role of making or amending laws either. If it is an unconstitutional law' they can rule it so. If it is not unconstitutional, but just plain dumb, that is for Congress to fix. That really isn't a hard concept to agree upon.
2
Trump officially plans to define transgender humans into oblivion. Without having legal ID, they can not exist well or privately in society, or will constantly be outed when they try. Gerrymandering, PAC's and local prejudice makes it so they'll never get rights through the voting box. And now with packing of federal courts with young, arch conservatives, they'll get no justice that way.
Now medical science has no more debate that sexual orientation/gender identity is inborn and immutable; the only debate is how it happens biologically. This is simply incontrovertible science. But if the courts refuse to apply science but use instead faith (1st Amendment), or Originalism which says nothing about sexuality in the Constitution, they will have no rights. This is wrong and this is immoral. Practice your faith but don't inflict it upon others.
"Don't tread on me!"
1
The joke (I liked a lot) is an example of 'Schrodinger's box': the idea that you cannot know the state of the his cat until the box is opened. Thus, you cannot know ball or strike until the ump 'opens the box' by making the call. Once made, there may be argument but there is no appeal.
The problem comes if the ump is sure, ahead of time, that the next pitch will be a ball (or strike). If he sees ball before the pitch, and calls it like he sees it, Ball 4. For a long time the Court has been highly predictable, with only a couple 'swing justices' on a wide variety of cases involving public, political interest.
Now, with Justice Kavanaugh seated, we will often have four seeing Strike, while the other five see Ball on many crucial pitches. The next couple innings may be over before they even start. I'm calling it like I see it.
1
Some umpires call them strikes off the plate to the right every time and are unashamed about it. So do some jurists. Some do the opposite and are equally unashamed. Others, however, call them whatever way they want and claim to be impartial, despite giving the hitters the edge or the pitchers or even a particular pitcher. And some get very annoyed when their flaws are pointed out and throw people out of the game, despite the complaints being correct.
So I wouldn’t place too much credence in the umpire analogy for jurists. It does a disservice to both.
There are two major problems with the current conservative dominance of the Supreme Court.
One is “originalism.” The idea that the Constitution itself, written over two centuries ago in a vastly different world, can literally answer every modern question is ridiculous. The proper approach has to be to try to understand what the principles of the Constitution meant in their own context, and then try to apply those ideas to the modern world.
The second and even more important is that the courts are the only branch of government to which ordinary people have direct access. Courts are supposed to stand up for the little guy. Instead, this right-wing court consistently rules in favor of the already powerful, like huge corporations or state governments restricting voting rights. When the Court enshrines the right to cheat people or take away their civil rights, there is literally nowhere else to turn.
1
@David Koppett Originalism does not claim that the Constitution " can literally answer every modern question". The writers knew that it could not, which is why they wrote two ways of amending it, legislatively or by Constitutional Convention. The former has been used 27 times and has produced results including women's right to vote, direct election of Senators, the abolition of slavery and the Income Tax.
As to your second point, the Court is not supposed to consider the power of the individuals coming before it, but what the Legislature has written into law and how those laws apply to the case at hand. If the Court "enshrines the right to cheat people or take away their civil rights", something I doubt, there is someplace to turn; the Legislature. Elected by the people, each member ultimately needs the people's consent to continue in office.
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Legal issues are not simple and clear, like the rule establishing the strike zone. For that simple situation, the only difficulty is the boundary pitch.
The problem is that the US Constitution has contradictory messages. Freedom of speech is delineated: Congress shall make no law ... abridging the freedom of speech. But famously, there is no free speech right to shout "FIRE!" in a crowded theater. And Congress CAN legislate against that.
The rules are contradictory. There are rights of individuals. Rights of the group. Rights of corporations. Rights of religious organizations. Rights of private property. Rights of privacy. Rights of States. Rights to life, liberty and the pursuit of happiness.
An umpire is a very poor comparison. The umpire may have a difficult decision with a very close, very fast call. But he is not trying to decide where the line is. The line is clear. Supreme Court cases are taken on because the line is not clear.
1
And famously in the case of the 2nd Amendment, some jurists ignore half of the words, those about militias, and dismiss entirely the articles in the body of the Constitution that describe those militias and give Congress the obligation to establish and manage them. And somehow some jurists dismiss the clear language in the Constitution that the purpose of the militias is to protect a singular State, not the several states and not the people from the State.
But the writer’s point is well taken. Making split-second calls of ball or strike or safe or out is very different from deciding the law. But it is interesting that neurological science has demonstrated that in a general way opinions come first, then the reasoning, that is to say, the emotional center of the brain fires first, then the reasoning. That’s not to say that judicial reasoning, after an initial opinion occurs, is entirely inflexible and unchangeable. There are famous cases where the Court was moved from its initial inclinations. But I don’t think it’s too much a stretch to say that jurists, like people, most often have their opinions first and then figure out how to justify them. Some SCOTUS, jurists, generally being a smart lot, have been famously able to create wonderful and persuasive justifications, which are great if you also happen to agree with their opinions but can seem too facile by half if you don’t.
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If the Founding Fathers were here today, they would be screaming at all of us. The purpose of the Supreme Court should be to ascertain the existence of an applicable law related to the issue. The constitution does not include even a reference to 99.9% of the current laws and hence this "interpretation" approach should not be continued. The Supreme Court should provide the proper analysis of the given situation and in many cases send the issue back to Congress where they should be the ones who make the laws - not the 9 justices. When will this nation wake up to the most important thing that Thomas Jefferson wrote and that would be that we should have a non-violent revolution about every 20 years and re-write the constitution thereby dealing with the then current issues of the nation. I think it has been more than 20 years since he was alive, right?
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So true, and well written..The conservatives not liking the greys is what we are seeing now. They like the line in the sand. Good thing there are high tides. No one can totally control events, or our thoughts, no matter how they try. Tolstoy's wonder character showed me this on his long march in War and Peace. Our souls are our own. As this administration with its boorish dictator type at the helm, tries to enslave the better nature of our angels, he will not be totally successful.
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Eddie Gaedel drew a walk because the umpire was an Originalist: that is, he applied the rules as written. He didn't apply identity politics and attempt to (literally) "level the playing field" for a pitcher faced with a nearly-impossible strike zone.
Yes, the pitching mound has been alternatively lowered and raised, to assist pitchers or batters as one was perceived to be at a league-wide skills advantage over the other, but those changes were instituted uniformly at all parks, and via an orderly legislative process (the MLB rules committee).
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This is a wonderfully perceptive column - well worth reading by anyone. It contains much wisdom and is worth keeping and rereading from time to time. The world is not black and white; it's grey and, perhaps unfortunately, a multi-colored gray
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The philosopher's umpire joke is very apt, but the umpire analogy is not the only misleading sports analogy that Kavanaugh trotted out during his hearing. He characterized the Supreme Court as a team, which is manifestly not the case. Rather, it consists of (for now) nine individuals whose entire job description is to persuade one another of the merits of the cases that they chose to hear.
Justices don't write "facts", they write "opinions", and everything comes down to how those opinions are grounded and how they relate to existing jurisprudence. The proper functioning of the Court rests on the evidence of proper deliberation that the opinions reveal.
There is, however, a team mentality developing on this Court, and it is on the right wing. To the extent that Kavanaugh tries to make his mark as part of that team, the decisions he and the rest of his "teammates" hand down will reduce to "because we said so".
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Baseball Umpires and Supreme Court Justices jobs have little in common, especially with the advent of instant replay technology. Whether or not instant replays are used to ensure that no umpire mistakes are allowed to affect the outcome of a game, we can watch video of any pitch, create a visualization of the "strike zone" and definitively determine whether or not the ball passed through the strike zone. We can also have cameras positioned to give us the same point of view as the umpire--and see whether or not they made the right call from that perspective. Supreme Court Justices don't have it quite that easy, nor should they--not only are the stakes considerably higher (typically life and liberty are not at stake in a game of baseball), but to allow such matters to be simplified (when in many cases they can not--except perhaps in matters that end in unanimous decisions) and to allow a stated judicial philosophy to be responsible for the decision (even when, in many cases, such philosophy is ignored when it does not produce the desired result--a good example is "Originalist" Antonin Scalia's majority opinion in Heller) is to let the judge off the hook and absolve them of responsibility for their decision. Justices should be aware that they are human, and not some judicial philosophy, just as the plaintiffs, defendants and attorneys before them are human as well.
If we followed "originalism" the US would be a third world country, pure and simple. It is funny, conservatives will argue that decisions like Brown Vs Board of Ed (tells you a lot about what conservative now means) violated the constitution, since it was judges in Plessy versus Ferguson who ruled that segregation was legal (seperate but equal), despite the fact that the 14th amendment clearly made that illegal, conservatives argue Plessy was 'applying the law'.
More importantly, Scalia of all people made clear that he thought strict constructionalism was a joke, that at times the judiciary does have to rule on law. More importantly, conservatives have no problem wanting judges to make law when it fit their agenda, when Oregon passed assisted suicide on a ballot initiative, the Bush administration took it to Scotus, arguing the federal government had an overriding reason to override what was passed, and argued that the bill of rights implied the right of the government to 'protect the right to life' by stopping the practice. In the Citizens United case, the conservative judges ruled that corporations have the right to free speech, despite the fact that the constitution does not explicitly enumerate rights to corporations, it talks about people (sorry, that 'corporations' are made up of people is a lot more laughable then 'eminations from the penumbra', at least that was protecting individual rights, companies have no enumerated rights in the constitution).
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Back in the 1950's few people thought that interracial marriage would eventually become legal and acceptable to some degree. Gay people getting married? ....... out of the question. Yet, these things came to pass in a changing society that shifted away from mainly agriculture to urban and suburban service orientation with a higher premium on people skills.
The social consensus changes along with the changing economy and social conditions. Local regions and states start to make laws that reflect the changing situations. These laws often go to the Supreme Court for review. The Supreme Court justices can either go along with the changing social consensus or maintain the more 'traditional' perception of right/wrong, fair/unfair. People change. Definitions changes. The Supreme Court judges often weigh in on the latter side of change. The law may change as a result, but the social consensus often remains unaffected.
The expectations of the crowd watching the ballgame have a significant influence on how the game is played eventually.
And like the umpire in the game that Eddie Gaedel batted, he called the strikes per the rules and Eddie walked. He didn't decide that since Eddie was so diminutive that the strike zone needed to be adjusted to assist the pitcher and applied the rules as written. I don't want a judge who decides that the rules don't apply in some aspect because the judge has decided the rule is unfair. It's not the job or the role of the judge to legislate the law, it is their role to apply it as it was intended by the legislature. Much of the current chaos in the Federal Courts is because judges have decided that they want to adjust the rule to assist the metaphorical pitcher and then apply their new interpretation of the "fairer" rule to all of us. Quit trying to fix the rules of the game by applying a different standard for each pitch. Don't like the rules as they are written, then these same judges can go back to being the lawyers they were before.
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@Mike.....The Constitution was intended as a tool to govern the country. It was not intended as a suicide note. If something in the Constitution clearly doesn't work because of modern and unforeseen developments, blindly following a word for word interpretation simply because that is the way it was written does not meet the obligation of the Constitution's original intent.
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@W.A. Spitzer If something in the Constitution clearly doesn't work because of modern and unforeseen developments, it is the job of the Legislature to change it either by law or by amendment, not the job of 9 unelected Justices.
@mikecody....You missed the point. The intent of the Constitution is to function as a tool to govern the country. If, by following a word by word interpretation (perhaps because the specific words no longer apply to our more modern times), if you interpret the Constitution in a manner that does not serve the present function of government, then you cannot claim to be following the original intent of the Constitution.
Ms. Boylan's description of "originalism" misses the mark and is superficial. You can't distill originalism, textualism, postivism, the living Constitution or any interpretative theory in such a perfunctory manner. If you read scholars like Randy Barnett and Will Baude, you'll see that even textualists (no one really calls himself/herself an "originalist") differ in their approaches. But the notion isn't that we freeze in time society's structure as of 1787 (or later years when dealing with subsequent amendments or statutes). Rather, it is that words have meanings and the legislators who used those words intended that the article, statute, etc. have the meaning commonly understood at the time. The alternative would seem to be a "Through the Looking Glass" approach of words meaning whatever a particular judge says the words mean when he/she interprets them. So think of a jurist you most despise. Now give him/her authority to say that words mean anything because the law must be flexible. That would appear to be Ms. Boylan's preferred approach.
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@James, you may find it interesting to review the recent blog in the Harvard Law Review that refers to the Brigham Young University's new mega database of language usage. It conveys that "bear arms" and "militia" had overwhelmingly military meanings at the time the Constitution was written. To true textualists, the new abilities of big data should, in fact, lead to a new reading of the original text. Should textual-based readings change as our understanding of historical context improves? It doesn't seem to and I'm confused as to why. Here is a link to the HLR blog: https://blog.harvardlawreview.org/corpus-linguistics-and-the-second-amen...
Very good analogy, but basically the whole federalist society idea of rigid constructionalism is nothing more than an excuse to legislate based, not on the law, but on the extreme right wing political philosophy that wanted to gut the intent of the constitution in protecting individual rights and affirming the right of majorities (or minorities, as in the case of the hard right GOP that has control of government through tricks), to force their beliefs on others (especially the evil evangelicals), but more importantly to even further give power to those with money and wealth, mostly corporations and individuals who happen to be white men.
What they leave out is that the founders never envisioned it that way. The constitution itself is murky, because if you read the writings of Madison and Jefferson and Adams, they assumed that judges would decide the scope of the constitution. Conservatives argue that if times change, then you can amend the constitution, but it is obvious the founders didn't think that way, otherwise they wouldn't have made amending the constitution so hard (28 amendments in 240 some odd years), they would have made it like California. More importantly, the very thing that gives SCOTUS its power was based on a court decision, Marbury Vs Madison, written by John Marshall who was a founder. If Marshall believed in strict constructionalism, they would have ruled the court had no right to decide that issue, but he didn't.
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I always get a kick when an umpire makes a really bad call like when a runner is called "Out!" when the runner clearly crossed the base well before the ball arrived, and the fans yell "He Was Safe!", because the only thing that makes that runner "out" or "safe" is the umpire.
In a strange way, the reality only matters to an extent, meaning, what actually happened on the play is secondary at best. It doesn't matter if the runner was clearly safe on the field, if the umpire calls him "Out!" he is out. The umpire alone is the decider of what actually happened, even if that is not what actually happened. So, the umpire it can be argued is the most important player (most consequential) on the field. And, Chief Justice Roberts' statement during his confirmation hearing is alarming, because he believes that the laws decide the game not the judges, and he is wrong. Just reference Bush v. Gore if you do not think judges decide the game, and the law (reality) is secondary.
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"I call them according to my conservative ideology and religious faith, and/or what increases the wealth of the wealthy persons (corporate and individual) who selected me to represent them, and/or what best advances the interests of the Republican Party." That umpire is Brett Kavanaugh.
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The founding fathers said all men are created equal. They also owned slaves and held that slaves are 3/5ths of a person.
Slavery. Strike or ball?
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@Tim All men are created equal is in the Declaration of Independence, not the Constitution. That was written by and for 13 separate colonies. After that, the Articles of Confederation superseded it, and later the Constitution superseded that document.
Therefore, you are comparing the current version of the rules with the version before last and finding differences.
"...but also ruled in no small measure by wisdom, and kindness, and by love."
I have no doubt these are all in people in differing degrees. But we humans are really ruled by a narrow self-interest a great deal of the time. It is almost amazing that we have gotten so far anyway. That is why I believe democracy in this country is still not in the dustbin of history, despite even the recent false elevation of a spoiled brat such as Kavanaugh.
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"It’s no coincidence that it’s the world of grays that often presents the greatest challenge for conservatives"
Actually this is totally wrong, the world of gray only causes problems for ideologues which include many, many liberals. Singling out conservatives is more a reflection of the authors bias and is just another anti-conservative/anti-republican opinion piece in the NYT.
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@Faust Conservative ideologues have a very narrow, confined view of life, whereas liberal have a far wider, more epansive one which includes , in fact, much that is conservative. That's all he's trying to say, but I understand you are uncomfortable with it.
Abortion is not mentioned in the Constitution, yet in Roe v. Wade, the Supreme Court found a woman's right to privacy within the "penumbras' of the XIV Amendmenti. No bright lines here. This is bound to irk the "originalists" on the Court, of which the newly confirmed Kavanaugh is the most recent and egregious example.
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@Alan J. Shaw
You are confusing two cases, though Roe was based on the early one.
"The eminations from the Penumbra of the Bill of Rights" came from the Griswold Decision in 1961. Griswold was a challenge to a Connecticut law (thanks to that paradigm of morality, the Catholic Church with their obsession with being in everyone's bedrooms) that made it illegal to buy birth control of any kind in Connecticut, including condoms. The majority ruling was the first case to explicitly give people the right to privacy based on the Bill of Rights (personally, it should have rested on the 1st amendment, given that the rule was almost entirely based in Catholic teaching), something courts had pushed along. Conservatives of course, despite their claim to libertarianism, love having the government in bedrooms and to have the government having the ability to enforce morality rules or spy on people, they love the police state.
Roe extended this to abortion, arguing it was a private decision of the mother.
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We are born into the world cold, wet and crying. Then things get worse.
For all the possibilities and the joys of life, it remains messy.
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Another aspect of justice missed by the umpire analogy is about the dealing with the balance of power between plaintiff and defendant. Our legal system is built on the necessary hypothesis that the two are sufficiently equal, especially with representation. It is the responsibility of the legislature to ensure that contracts and such can only be made when this underlying hypothesis is true.
What happens when they don't do that? For example, when they allow contracts that include forced arbitration between individual consumers and gigantic multinational corporations? Or non-compete clauses for low-wage workers in large companies?
These are not balls and strikes issues. They are about checks and balances. They are about the SCOTUS forcing the Congress to do its job of ensuring that the necessary and fundamental legal hypotheses hold up in court. When the judges purge themselves of this responsibility by saying their job is to call balls and strikes they are making grave changes to the role of Justice - in fact doing this abdicates their Constitutional responsibility.
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@WJL If those things are problematic, then it is the duty of the people to elect legislators who will change them. There would be no Constitutional challenge possible if a law was passed forbidding forced arbitration, for example. Non-compete clauses could also be forbidden, if the people, via their chosen representatives, want it so.
It is the Legislature who abdicates their Constitutional responsibility by allowing these things to continue.
The current Supreme Court is now close to being a total mockery of justice.
It’s pretty clear that Thomas, Alito, Gorsuch and Kavanaugh and most of the time will decide against cases where individual rights and freedoms are involved.The liberal Justices will vote the opposite of the “conservative” justices.
It’s gotten so bad that I think many Supreme Court cases don’t need a a hearing to know how the Justices will decide.
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The “nothing till I call ‘em” quote should have been attributed to legendary, early Twentieth Century umpire Bill Klem.
I heard and have been using the umpire story in my therapy practice for over 25 years.
Yes — you could look it up.
All I know is that the thoroughly 'vetted' Kavanaugh and Gorsuch may as well be right wing robots. They are conservative in the extreme and could never have been confirmed by a 60 vote margin. Hence the McConnell filibuster fix.
It doesn't matter what kind of umpire these two 'Justices' might ape. Those statements during their hearings were carefully rehearsed and just for show. They will vote exactly and predictably how the Heritage Foundation and the Federalist Society expect. (They couldn't show their faces at conservative social events if they didn't.)
The justifications for their opinions will be essentially the product of a political philosophy where the end justifies the means. Appropriate words, citations and logic will be supplied as needed, but after the fact.
That's modern Republicanism. And it's on daily display in the Trump administration, and in the decisions of those running Congress, and particularly in the seating of 'Bart' or 'Boof' or whatever Kavanaugh. A man who was credibly appointed to protect the president. A man who may be an alcoholic. A man who probably perjured himself. A man who probably assaulted an underage girl in high school. And a man who finally shed his veneer of judicial objectivity in public.
Of course, we'd know more about his character if he'd been properly investigated and then questioned in a full and fair hearing. But that would have required a search for the truth. Not a rush to a predetermined outcome.
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interesting article, but I think the criticism of the electronic strike zone is off base - and that may tell us something about the Supreme Court. According to my rough calculations, a pitched ball gets to the plate in about half a second. and it is OVER the plate for less than 1/100 of a second. I would argue that these numbers mean it is effectively impossible for an umpire to do anything more than guess.
But an originalist - in baseball or in law - would say "but the old way is what the creators wanted it to be." No - it was the only way they had available. The old way does not fit reality. Calling balls and strikes visually may be fine in the minor leagues, or an amateur or kids game - but I don't want society's big decisions to be decided that way.
PS - I don't care about baseball at all.
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If a judge believes “they ain’t nothing until I call ’em!” he/she is not a judge. Unlike baseball umpires who call each pitch On its own, judges are required to base their decisions on legal precedent. Not considering legal precedent only makes a judge a candidate for disciplinary action or impeachment.
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The progressives long to define the 1st, 2nd, 5th, 6th and 10th Amendments out of the Constitution.
Progressives can't wrap their heads around the Federal aspects of the Constitution (e.g., States have independent sovereignty, the each State has 2 Senators and no State can have its equal representation in the Senate taken away without the consent of that State).
The originalists can't ever seem to apply their philosophy to the 14th Amendment and its history. And they have been seduced by the efficiency and corporate-friendliness of the Administrative State which violates every concept of the separation of powers.
One final comment -- Professor Boylan like many other progressives misrepresents the 3/5 Compromise:
1. It was not "African Americans" who were the subject of the 3/5 rule, it was Slaves. There was a distinction. Slavery had been abolished by 1787 in Pennsylvania and Massachusetts and there were free African Americans who counted 100% toward their State's representation in the Federal House and Electoral College.
2. Counting 3/5 of a Slave for the Federal House and Electoral College still left a Slave as Property and 0/5 of a human being. The 3/5 rule was all about counting Property as Partly Human to increase the power of the Slave Owners in the Federal government.
3. The Civil War Amendments ended the 3/5 rule. It hasn't existed for over 150 years.
I think Prof. Boylan is 5/5 a human. I wonder if she thinks the same of me?
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@Frank
If you support Trump who now wants to define trans people as nonexistent, then you DO you believe Boylan is 3/5 of a person. You can't have it both ways. Under his plan, she would have had no medical coverage for medically necessary surgeries to transition, nor could get ID that didn't out her as formerly male.
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Great article- particularly the references to originalist nonsense. Few people realize that America was created by uniting 13 different nations, not states. People considered themselves Virginians, or South Carolinians, etc. No one envisioned a country of 50 states stretching thousands of miles beyond what America initially became, with many states created without reference to natural boundaries. The right to bear arms meant muskets. Freedom of religion meant what brand of Christianity you wished to practice. Individual rights applied only to white men. The electoral college was established to prevent a Donald Trump, not to create one.
Anyone, on either side of the political spectrum, who argues that the Constitution provides a black and white guide for interpreting laws today is either an idiot or attempting to use the argument to achieve a desired political objective.
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@Disillusioned, many of the founders, including to my knowledge John Adams and Thomas Jefferson, meant religious freedom to apply to everyone, Jews, Turks, Mohammedans et al. (in the language of their day). That is the legacy of Baptist influence, as Baptists then were the despised dissenters persecuted by a state-affiliated church. Yes, Baptists. Look it up, starting with Jefferson's epitaph.
The so-called Baptists of today - called the Religious Right even though they are wrong - lust to use the power of the state to enforced their misbegotten creed, born of bigotry, greed and fear. A long fall from what their putative Founder intended.
@Disillusioned..."The right to bear arms meant muskets."......Read Federalist Paper 29 by Hamilton. The inclusion of the line about "a well regulated militia" was not an accident.
Very few things in life are starkly black and white.
Those who adhere to such a Conservative rigid bipolar and completely false, inaccurate, and destructive mindset neither belong to nor should be seated upon our courts -- especially our supreme court.
Such inflexible and blind -- yes, blind! -- thinking, coupled with extremist rightwing ideologies shall only undermine the very legitimacy of our judiciary.
There are colors in the spectrum which are invisible to the naked eye and yet which do exist. How atavistic must Conservative thought regress to? The answer: as regressive as is needed to further enrich and comfort those who are already rich and comfortable -- all while inflicting more pain and punishment upon the rest of the hardworking beleaguered Middle Class whilst afflicting the already afflicted.
This is a recipe for disaster! As President Harry S. Truman once stated, someday there will be one Depression too many, and there will be a settlement: a final settlement. The Conservative uber-wealthy worship Mammon. They are all for themselves and no one else. They care naught about the 95%. Naught, naught, naught! The only comforting thought is that they cannot, shall not, escape the great leveler: Death himself! One can only hope and pray that an Eternal Punishment for these sick, corrupt, and cruel Billionaires and their lackeys will be final, agonizing and aeviturnal!
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What the author calls a "robot" is a judge, not a legislator. What he (yes, he) calls a "pragmatist" is a dictator in a black robe, whose "experience" subverts the sovereignty of the people to make their laws and govern themselves.
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It all comes down to ethics. Or the lack of ethics. Ethical judges and umpires will know that they are simply part of the game, an important part, but just a part of the overall process. They will not let any of their own preconceived ideas, notions, or beliefs enter into their decisions. Not because they are "originalists", or "pragmatists", but because they know, at their core, that is the right way to do their job.
Along those lines, Judges like Thomas and Scalia are unethical failures. Kavanaugh will be just like them, unethical at his very core.
The difference between umpires who are unethical in the way they call a baseball game, and unethical supreme court judges like Thomas, Scalia, and Kavanaugh, is that, eventually, baseball gets rid of unethical umpires. We are stuck with our unethical supreme court judges, until they resign, retire, or die.
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What do umpires and judges have in common? They are human. Period.
Ms. Boylan's article makes clear there is much more to being a judge than simply calling balls and strikes: baseball is a game of skill, strategy and chance; a courtroom should not treated as a game (though too many prosecutors and defense lawyers see it as a game to win despite the truth).
At the level of the Supreme Court, justices should be philosophers of enlightenment, open to revising their long held personal beliefs to reflect a higher consciousness of humanity within the confines of established laws. They may have to come down on the side of an explicit law if it is not unconstitutional, but they should decry their own ruling, the law and note the need to change the law.
In situations where the law is not explicit the justices should rule in favor of the moral right thing to do. Recognizing that the ideal of the Constitution is to protect the rights of ALL Americans. That ruling may neither be a ball or strike, but the right call.
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It is a very old story. The third umpire was said to be the legendary Bill Clem.
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Great article. I'm not sure if the quote is original with Dr. Bixler. My TA in american lit used those same three quotes to illustrate modes of perception in a discussion section in 1978.
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In the real world the stakes are a lot higher than a baseball game. A key issue is whether the courts should view everyone as equal before the law. This seems to be Justice Roberts attitude, but this attitude tends to favor the rich and the smart. (Corporations, for instance, often have the law on their side.)
On the other hand there's the Marxist attitude that treating unequal people equally merely perpetuates inequality. They favor "Robin Hood" justice where the courts openly sides with the poor against the rich regardless of what the law actually says.
Both sides have a good point. We can only hope for judges with good judgment.
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The difference is that our current crew of Supreme Court justices are there to perform a certain job, that job is to rule in favor of the Republican agenda. This allows for some of the most ridiculous rulings since politics took over the court. We no longer need the VRA, the next day Republican States enact stricter laws to deter certain people from voting. Followed by the most convoluted ruling in the baker vs Colorado, this ruling turns judicial prudence on its head. The Court selects only cases they deem necessary to change to benefit their biases. The next case will be abortion rights, they have the Evangelists voters that most be paid.
If my baseball history is accurate, even the White Sox could be bought to throw a game, nothing changes.
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Excellent column, Ms. Boylan. I was born in Chicago, and Bill Veeck was one of my heroes. And now that I live in St. Louis, so is Eddie Gaedel. They're both gone, and the world is worse off without them.
Oh, the column was about judges? Well, that part was great too.
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Jennifer's last sentence could apply to her comment on 18th century founders.
The cover of the “Saturday Evening Post” from April 1945 illustrates your point we’ll. Is the game a rainout or is the weather getting better? It all depends on where you stand on the scoreboard.
1
Well, not quite complete.
Since the majority of Justices are Catholic (6 0f 9 if including Gorsuch), who was raised Catholic), there is another judge/umpire.
"I call 'em the way God intended. My God."
It is this kind of "umpire" who will deprive Ms. Finney Boylan of humanity and deprive women of control over their own bodies.
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@Barking Doggerel
Just just Catholic, but Orthodox Catholic, the type that thinks that Church law and teaching is meant to be followed rigidly, without thought, they aren't Cafeteria Catholics (and one has to wonder if for example, legislatures start getting rid of the statute of limitations on abuse cases, if the church takes it to Scotus if the Catholics of the court won't rule to defend Ma church and say the legislators can't do that).
@Barking Doggerel
Moreover, the two largest church affiliated groups in the U. S. today are Catholics and Evangelicals. Combined, they represent less than half the population. Certainly three women (of nine justices) under-represent more than half the population; two are Jewish, one Catholic. A truly representative court would include other Protestant groups, Atheists, Agnostics and those replying "none" to the question of religious or church affiliation.
I don't know--this sounds like a post hoc rationalization to defend actions the Court took to create policies that social liberals like me treasure. We love the major policy victories from the 1960s and 1970s that our ancestors implemented through the Court. Those victories all represented good policy, with the exception of Roe v Wade which was, as Ruth Bader Ginsberg says, "too much too fast".
But the fact remains that the Court was the wrong place to change these policies. Civil rights and abortion and other policies are too important to depend on the whims of nine unelected lawyers whose appointments reflect the random timing of their predecessor's deaths. Congress is the appropriate forum for major policy changes.
Because we all love the outcome of Brown v Board of Education and other treasured cases, we are tempted to argue that the Court should have this policy-making role. We must avoid this temptation. These policies are too important to be left to the vagaries of the court. Roberts is right: the strike zone is set by law, and judges should only apply it.
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The metaphor of the judge as umpire may serve to clarify some judicial decisions, but ultimately it misleads more than it enlightens. While an umpire may not always correctly identify a pitch's location with respect to the strike zone, the right technology would enable him to do so. Factually, every pitch does or does not pass through the strike zone. Disputes arise only because of the inadequacies of our powers of perception.
With respect to judicial rulings, however, the Constitution or statute law may not provide clear guidance that would enable a judge to remain faithful to the intentions of the legislators. She may have to rely, for example, on her understanding of the purpose of law to reach a decision which she believes would conform to the spirit of a document created in a very different time period.
A jurist who believes that Madison and his colleagues sought primarily to protect human rights will surely rule differently in some cases than one who sees the Constitution mainly as a guarantor of property rights. In these instances, the judge, not the laws of physics, determines whether a 'pitch' passes through the strike zone.
2
Good column. What we have today on the Court is a situation where we know in advance exactly how the justices will rule. They will be fed softballs from the lower courts and they will rule according to their ideology. I suppose we can call them theatricists. The tragedy is that the justices are all insanely well versed in the law. They pick up and put down complex legal arguments in split second timing. However, now they are just playing a part according to who appointed them.
14
When an umpire makes a 'mistake', that mistake lasts for precisely one pitch, and usually has little effect on the outcome of the game.
When the Supreme Court makes a 'mistake', that mistake becomes accepted law - which IS the game.
14
A refreshingly clever essay. I often marvel at the pseudo-jurisprudence of originalism, the psychic ability to channel the thinking of Madison, John Marshall, Jefferson, Adams and other Founding Fathers in deciding today's legal battles by oddball interpreting of the Constitution. Baseball could get weird again if the Commissioner could only be inspired by the lingering spirit of Kennesaw Mountain Landis and the halcyon days of baseball's racial segregation. The gutting of the Voting Right's Act by the Robert's court is a fair comparison, a preview of where these justices are willing to take America.
19
Excellent piece.
It should be required for all the justices of the Supreme Court, especially the Chief Justice who first used the analogy.
9
Ah, but in the Supreme Court there is no instant replay to see if the judge got it right. And, unlike in baseball, the litigants cannot call upstairs to the press box and hear from one of the coaches the call was wrong and then issue a challenge. Umpires in baseball can offer a mea culpa after the game and cite "I am only human" as a defense. Judges, on the other hand, don't get it wrong. At least they don't admit to it. Or, if they feign to, it's long after the final argument has been presented, and the game is in the record books by then. With absolutely no
further recourse.
6
Bill Veeck was the principal owner of the Browns, not the team's manager (it's important that we get the details of critical events in American history right). However, a few weeks after the Gaedel at-bat, Veeck was in a sense a partial field manager--a group of fans in the stands made the key decisions in a game by flashing placards; Veeck sat with the group.
2
Terrific column, timely insight and eloquence.
7
Excellent.
I'd add that Justice Elena Kagan was right in her confirmation hearing, and not only for the Court.
What problems get all the way to the President's desk? Not the easy or clear ones. Not the unimportant ones. It is the difficult gray area ones with real consequences.
What does Congress do besides name Post Offices? They pass every new law of consequence, and (often by sunset rules must) review the old ones.
The third branch of the Court is the same in that way as the other two. If its easy, a District Judge has already done it. In fact, for the clear black and white rules cases, a Magistrate probably made them settle pre-trial, which is how over 90% of cases go even when someone makes a Federal Case of it.
9
The author's interesting observations on the philosophy of umpiring and jurisprudence is marred only by the inclusion of the canard that General Doubleday was in any way involved in the development of baseball. That myth was promulgated by the baseball owners of the 19th century in order to "prove" the American origins of the sport. The truth remains central to good columns, fair laws, and great baseball.
3
I would just say, I don't think the original writers of the Constitution saw anything remotely like bright lines and simple decisions. The Constitution is very short, and leaves enormous room for interpretation. They made it short just because they didn't even want to try to get everything down in a final, "bright line" form. Modern self-styled conservatives either don't understand this, or in the case of Supreme Court Justices, probably pretend not to understand it.
32
Umpires do not just call balls and strikes, they define the strike zone. When justices claim to be umpires to gain an aura of impartiality they are being disingenuous. They may well be adjusting the strike zone to decide whether to call a pitch a ball or strike to conform to their biased interpretation of the constitution.
27
@Vijay B They can even decide whether the game is going to be called because of bad weather, can't they? I would think that is a bit of a judgment call.
1
Excellent piece. I had the same, if less fleshed out, thought a couple weeks ago (and screen shots to prove it).
One of the beauties of baseball is that every umpire has his own strike zone. And that makes every game, series, season, or even era, an ongoing and distinctly human negotiation for justice and fair play. For instance, good umpires miss calls all the time, but the very good ones make up for those mistakes later through clearly giving the pitcher/batter a break on something borderline.
Or consider the unbelievable exchange from the leaked argument footage from a 2016 mets game. The Mets pitcher, Thor, had been ejected from the game for throwing behind dodger’s chase utley (Booooo), payback for utley’s dirty slide during 2015’s playoff series. The main argument between Mets manager terry Collins and the umpire was sensational. Here you had two men vehemently trying to get the other to see it from the other’s side. There’s no appeal to the official rule book: it’s all about personal appeals for fairness, and the spirit of the game. Collins argues that in baseball, players and teams have a right to police themselves and issue punishment for a play so dirty they had to write a new rule banning it. The umpire agrees in principle and does support Collins, but is bound by his duty to his job and the game. Amazingly, both are able to see the other’s side, and the argument is solely about what is fair.
The law is and always been a deeply human affair.
13
Too many Newtonian concepts for an Einsteinian age. The three positions can be reconciled by overlaying them with the recognition that only a potential for balls or strikes exists until the act of umpiring intervenes. Realism is thus better understood as idealism because it posits an immutable standard. Calling them the way you see them is only possible because the way you see them participates in the act of creation. Pragmatism maybe comes the closest functionally except that suggesting some condition of pre-existence fails to duly recognize randomness. And so on.
As Lou Costello famously queried, "Who's on first?" Or was that Wittgenstein?
5
@woofer Heisenberg behind the plate , calling balls and strikes on the wave-function that seems to be the particle-ball travelling c on the radar gun.
You're not helping your cause...
The missed ball/strike calls have been painfully obvious since center-field HDTV cameras have been around...
Just credibly deniable - until now...
A strike-zone visualization is one of the simplest useful examples of something called AR (augmented reality)...
The argument against their use is like many of the current arguments against AI...
Not only exposing how much better at something a machine would be - also how much less biased it would be...
.....
Of course I jest...
Bias???...There's no bias!...There's no bias in baseball!!!
1
I would suggest that, perhaps, the three umpires' views reflect the intellectual growth of a person. A child might believe the first umpire's view. But, when they see the SCOTUS deviating from the constitution, they might progress to the second umpire's view. Then, in my case, when I took a class on constitutional law and read some SCOTUS opinions, I learned that they just make it up. Of course judges can't say that they just make it up, since they would be criticized heavily for saying that, perhaps impeached for going rogue.
We should also remember that they are selected by rich and powerful politicians who serve the rich and powerful. Hence, the need for black robes, avoiding talking publicly about the issues of the day, and sitting high up in court, as if they are above the fray, while voting strictly along party lines in Bush v Gore, shattering the delusion.
This growth is analogous to a child viewing the president as a benevolent parent, then gaining knowledge of the nuclear bombings of children, or the unconscionable genocide against innocent men, women and children in Vietnam, realizing that government is evil, shattering the childhood delusion.
The stages of loss of innocence, while painful and unsettling, shattering the childhood myths, the loss of one's political virginity is necessary for political maturity and adulthood.
24
@Anna Ogden-Painful to read and so true.
4
@Anna Ogden Except, I would say that the earliest stage would be "I call them the way they are". It takes a little sophistication to become conscious that there may be some difference between what you see, and what is, and that the best you can do is go with what you see. And the pragmatism of the third ump is a pretty specific pragmatism (I guess all pragmatisms are pretty specific). This is about the way the rules are written, and the role of the ump. Sort of like saying your grade in a course is what ends up on your report card, recognizing that for a variety of reasons it might not reflect how much you really learned in the class. But it's still your grade.
3
Where Prof. Boylan misses the mark, and betrays her English degree instead of a law degree, is that even the most ardent social constructivist would likely agree that the addition of the "Hawk Eye" in tennis, which eliminates the fallibility of linesman/woman calls of in or out, has been absolutely fantastic for the game. If such a technology existed for baseball, it would be great for the game, too. In the absence of legal Hawk Eye, the realist judge is hardly a mechanic. Instead, his or her standard is that of the mechanic, and must use human reckoning to set standards, determine facts, and then apply the law to those facts. If a better system came along that eliminated the uncertainty, the realist would surely do that.
Maybe not the constructivist, though. Because if the ball is hit out by a person of an oppressed class, even according to Hawk Eye that constructivist might well want to find a way to make it "in" to counter centuries of colonialism, past discrimination, and structural inequity.
8
@Observer of the Zeitgeist
I think the primary point here is that the notion of a supreme court justice being a caller of balls and strikes is a bit silly. There is no instant replay to assist the justices, therefore they are not some kind of objective arbiters, as much as they might claim to be.
The umpire defers to nobody. The judge defers to the jury. He may instruct the jury or relate to objections, but usually the real decision is not in the hands of the professionals but in the hands of a bunch of amateurs with absolutely no experience and no proven intelligence.
With all due respect to Chief Justice Roberts and Prof. Boylan, I'd sooner be in the hands of an umpire, in spite of their famous supposed fractured syntax.
2
@Joshua Schwartz To what jury does Roberts defer? Thomas? Alito?
@Joshua Schwartz 1) There is no jury on the Supreme Court.
2) Jury of one's peers - if we want better juries, we need better peers...
@Roger Prof. Boylan refers to Judges and not to Justices. Judges have juries.
One of the things that confounds me about "originalism" is that the constitution contains very few "bright lines", by design. A judge on the Supreme Court is almost necessarily in the "they ain't nothin' until I call 'em" camp on constitutional questions.
What does the commerce clause cover? What does Article IV, Section 3, clause 2, really mean? How does the preamble apply? What does the general welfare clause mean? These are all questions which fall into the "they ain't nothin'" realm, and they can have huge impact on people's lives.
13
Judges frame the pivotal questions in the case under consideration. They then refer to analogous cases and conform their holding to those cases most similar to the case being decided.
Deciding cases is about comparing similar cases and rendering holdings based on relevant precedent.
Every case you ever read cites multiple similar cases -- i.e., relevant precedent -- and the decision is guided by holdings in cases similar to the case at issue..
1
Insipid.
Useless.
As if there is an absence of serious and useful thought on the subject. To the contrary there is a surplus. That disproves beyond fair dispute the judicial legislation conceits of the federalist cult right wing Roman Catholic packed Court.
That cult is forever beholden to such insipid useless lazy chaff. The chaff frees the cult from being confronted and checkmated by serious and useful thought.
7
It is reasonable to ask if human calling of balls and strikes has become archaic. Tennis switched to a robotic system of line judging a while back, I think. Soccer increasingly uses technology to see if a ball truly scored a goal or not. Would baseball be improved if the same thing occurred? Reasonable people can argue either way, but it doesn't seem crazy to have the discussion - should judges be like human baseball umps or should their work be highly constrained so that they function more like tennis line judging robots?
1
@Marc Schuhl We might know the 'truth', but not sure the game would be improved. Fallibility is at the core of the game .300 is a great average, and represents something like 2/3 failure (something like 2/3, because not all failure is equal in baseball).
1
@Roger. Or, 2/3 success rate if you are the pitcher. Perspective is everything, and it is all (baseball or the Supreme Court) a zero sum game for every winner a loser.
That is wisdom. Heuristic wisdom, perhaps.
I’m going to steal that joke. I love it. Roberts statement about not discriminating on the basis of race is the best way to not discriminate on the basis of race is like saying the best way to stop crime is to stop crime. Assumes facts not in evidence.
5
I watched every minute of the Roberts hearing and was duly impressed with his intelligence and answers to the tough questions posed by the Senate committee. Although simplistic, his sports analogy of calling balls and strikes seemed apt at the time. What was unspoken was his seeming penchant since to move the strike zone as it may benefit a partisan agenda. Gutting the voting rights act is just one example. Bush/Gore and Citizens United (which I did read in its entirety) are others. One hopes that the SCOTUS will work to restore some integrity in future decisions. Otherwise another branch of government will be irretrievably lost.
8
I would argue that one could not "gut" the Voting Rights Act without afflicting the only portion of it that affected the entire nation (as no portion of the nation was, then or now, free from race discrimination): Section 2, which any citizen could rely upon in any district court. Shelby v. Holder, of course, did not afflict Section 2 in any way.
Also, it is more than difficult to blame Chief Justice Roberts in any way for Bush v. Gore; I trust I need not explain why!
1
Baseball umpires like to position themselves at an angle to home plate, crouching over the catcher's left shoulder for a right-handed hitter, and vice versa for a left-handed hitter. They do that so they can crouch low enough to call pitches high or low, but it skews how they see left or right. Unbiased, computer measurements of the strike zone bear out how a pitch over the outside edge of the plate can be called a ball, or off the plate inside can be called a strike. Umpires (by and large) don't intend the natural bias, but their perception of an ascertainable truth is naturally skewed by where they stand, and where they stand is determined by whether the hitter is right or lefty. The metaphor is spot on.
8
Justice Roberts was being completely disingenuous. Unlike a ballgame, by the time Roberts gets a case some judges have not only already called a ball or a strike, but they've disagreed on the call.
The ever so humble Justice Roberts not only gets to say who was right, he does Bill Veeck one better by getting to adjust the strike zone for the next batter.
53
For precisely the reasons cited here, I've never liked Judge Roberts's analogy. Thanks for clearly laying out the argument.
6
Our Constitution should be "interpreted", not defined by one set of rules or another, not defined by some long past timeframe, carved out of thin air to provide an advantage.
Judges come in every shape and size, every kind of background, all defined by the written rule of law.
Umpires define reality by rules, either this or that, no in-between.
5
@John M Some parts of the Constitution ask to be "interpreted" and others do not. The 8th Amendment prohibition on "cruel and unusual punishments" needs human input to interpret current meanings of "cruel" - BUT the provision for exactly two senators per state, regardless of state population, is crystal clear and can never be "interpreted" to mean anything other than the number two. Some issues are subject to interpretation and others are not.
6
Indeed, one simply cannot describe the "right of (marital) privacy" proclaimed in Griswold v. Connecticut as anything but a construction of "thin air," no matter how wise the effect of the ruling.
2
And … now for something completely different.
Kudos to Jennifer for a great column. It presents a superficially compelling rationalization for the belief by some that balls and strikes really are all in your head and what physical manifestation they have is merely the bourbon-residue of whoever asks that question about whether the lightbulb really goes out in the fridge once the door closes. And there were adequate references to “judgment”, “wisdom”, “kindness”, and even “love”.
Of course, it’s all artful malarkey. (But I give her the “artful”.)
By Jennifer’s argument, disagreements over opposed interests, which is what our federal courts spend almost all their time adjudicating, are to be judged largely by an individual judge’s perception of the unbearable lightness of being – which necessarily is unique to that individual. This method provides no standards that can stand the test of time or that opposed interests, which may not also be embedded in the judge’s particular Kumbayaic bubble – or society as a whole – have any objective basis for respecting. Our courts would not occupy the relative position of trust they do if they did NOT stick to the rules as laid down by the Constitution and a respect for precedent.
John Roberts has the accurate bead on the proper role of a judge. And umpires call balls and strikes as they’re pretty sure they are by the rules that have been agreed to, even when occasionally they get a call wrong. Probably by a momentary act of “love”.
5
Umpires are there to ensure a fair game as best they can. Supreme Court justices are there to ensure on side wins
5
"...it’s the way you consider the intangible that defines what kind of judge, or umpire, you will be. It also has a lot to say about how you live your life and whether in the face of the new and unsettling you will react like a robot or whether you will react like a human being — a creature ruled by the law, to be sure, but also ruled in no small measure by wisdom, and kindness, and by love."
Thank you, good column. I like the umpire joke. Unfortunately not all human creatures, making decisions of all kinds, are ruled by wisdom, or kindness, or love...
3
I really like the way this article is put.
Although I believe strongly in what the author is saying there is some questions I do have. For example, since when does one person in this world have all the power and decides based on personal judgement? In depth with the judge comparison, I do not see how in any way the judge bases things off what they personally feel. The law controls them just as the rules of baseball controls the umpires. There is many people that could umpire a game. It's just about the force they have on the game and the people watching/playing. If you think about it, there are so many umpires around the world ranging from 12-60 (that was an estimate) that have equal power to the games they umpire as professional umpires do in their games. The judge comparison is shown within the judge being followed by law or being the voice of the law.
1
2018 Supreme Court = 4 Justices + 5 Injustices
63
In fact, all 9 of the Justices are superb and amongst the finest in their field.
Sadly, we have all distilled this to political bent, i.e. 5/4 or 4/5, depending upon our position.
Yes, the law is an elusive creature. I can't even begin here to discuss what we should do about our third branch of government!
2
@Anthony La Macchia Only because, at some point, the votes WILL be counted, and lives may be changed - an awesome responsibility.
@Neil Greenspan
The nine justices are not all superb. None of the Justices show adequate awareness of the pervasive and profound deficiencies in process, corruption of mission, and distortions of justice in our legal system. Perhaps the criminal justice system is worst of all, but even civil legal processes are often designed more to reward attorneys and judges than citizens in general.
The so-called conservative Justices committed to “originalism” and “textualism” seem to be insufficiently aware of the fundamental logical and philosophical problems with these commitments. Semantic specificity is not and cannot be absolute. Self-identified originalists do not even agree on what “originalism” means.
The Justices lack sufficient knowledge of science or skill in analyzing data. Their arguments sometimes fail to be logically rigorous.
Having worked in the courts for two decades, I think it's fair to say that 95% of what trial court judges do is umpire. The remaining 5% is mostly weddings. Appellate justices are the ones who write opinions on weighty matters of law, but only rarely. There are thousands of appellate justices in the country and the vast majority have never made an impact on the corpus of legal opinion.
It's not sexy, landmark cases where they make most of their impact though. Judge Lewis Kaplan, senior judge of the U.S. District Court of Southern New York, has made an enormous impact on the everyday lives of most Americans - for the worse. Judge Kaplan has a reputation of never having met a white collar criminal he didn't think was innocent. He, and he alone, sabotaged the early 2000s KPMG case and set a precedent for the "too big too fail" defenses that a few years later had the nation in such an uproar.
There's a lot of power in calling balls and strikes. For men like Kaplan, white collar criminals can never strike out. He's done more than most to give a green light to the epidemic of corporate malfeasance and rank criminality that grip the nation.
65
The author (not a lawyer but an English professor) doesn't address the fundamental problem. This is a democracy. The majority rules. The majority has bound itself by rules (we call them the Constitution) to limit the majority's powers. The Constitution has a provision for amending it, for changing it as necessary. What basis does a judge ever have to invalidate a law? It can't be because he thinks the Constitution needs to be amended because there is a procedure for doing that. It can only be because the Constitution limits the power of the majority to do something. If the Constitution doesn't say anything about the problem (e.g., abortion, gay marriage), then what basis is there for the judge to invalidate the law? Does the Constitution give unelected judges free-floating rights to strike down whatever laws they don't like? Or are judges supposed to find some basis in the text of the Constitution? Now of course some words in the Constitution need to be interpreted. "Freedom of the press" - does that include television and internet publishers? Does the "right to bear arms" include modern rifles? Those are the same question.
15
The main objection to the Bill of Rights was that enumeration would imply limits and the ninth and tenth made sure they could be expanded. The idea of freedom of the speech is to allow people to think and communicate freely, not to be limited by the government or religion or self righteous people who want to impose their religion on others and legislate morality.
7
@Douglas Levene You lost me at "The majority rules." Obviously, at the launch of this administration, and many recent Republican administrations, the popular voting majority had been overruled. Don't kid yourself. The people in charge were not chosen by a democratic majority.
5
If the recognition of new rights (Griswold, [at least marital] privacy; Roe, abortion; Lawrence, homosexual sex acts; Obergfell, same-sex marriage) were described as the work of the Ninth Amendment, THAT would be intellectually defensible, but the lengths one must go to find a right to use contraceptives in "due process" and "the equal protection of the law," is simply embarrassing and diminishes the court that does so.
The problem with "Ninth jurisprudence" is that it fits poorly into the American founding principle of the greatest possible separation of powers, offering courts an opportunity to act as a legislature does, though the federal legislature (Congress) confers merely statutory rights (except when it participates in the amendment process); a right protected by the Ninth is obviously a constitutional right. The Constitution (original Articles) established the separation of powers before the Ninth was enacted, before even the first Justice was nominated to the Supreme Court!
1
Under pressure, will you react like a cornered animal lashing out at critics, snarling and snapping? Or will you act like a human being whose faculty of reason governs their emotions and doesn't cloud their judgement?
Kavanaugh besmirches the bench.
86
The television imageof the strike zone is not usually a square, it is a rectangle. Language makes a difference.
5
@Michael Fiske
And the strike zone itself is three dimensional, which is not reflected in most representations on TV. A ball that starts high can dip just over the rearmost point of the plate to qualify as a strike.
The versions of the computer-rendered strike zone do a better job when they include the whole track of the pitch, showing just where it intersects the zone when it is judged a strike.
The game is rigged when a majority of the umpires is provided by the extremist conservative wing of the Catholic Church (I know Gorsuch practices as an Episcopalian these days, but his background is Catholic).
All I really know is America's politicians are batty and the country is all balled up and greatly in need of strikes.
36
@Rocky:
What does Justice Gorsuch's choice of a place to worship have to do with anything? The Constitution prohibits any religious test for public office. The justices (6 Catholics, 3 Jews and 0 Protestants) have all been confirmed by the Senate and are entitled to judge cases and issue opinions under the law. They are also entitled, as are you, to the First Amendment's protections of the free execize of religion.
2
"Hard cases [e.g. Eddie Gaedel] make bad law."
Why?
Because empiricists, realists and activists all interpret the Constitution according to different criteria. The emphasis must be on "interpretation".
My alma mater (same as Justice Kagan's) offered (and still offers) a course which was (and still is) entitled "Constitutional Interpretation" rather than Constitutional Law.
The lecturers and professors who taught the course have varied widely in their interpretations of the Constitution--just as have the Supreme Court Justices.
9
We need to retire the "three-fifths of a human" case against the founders, or at least the universal misinterpretation that we see trotted out more and more frequently. The fraction is correct, of course, although made obsolete by later amendments.
But the truth is that it was the supporters of slavery who wanted the fraction to be larger, and "one" would have been just fine with them. Slave states would then have more representation, but slaves, of course, would not be voting. Opponents of slavery did not want any representation to be based on humans who would not be permitted to vote. Three-fifths was a compromise. (A failure to reach an agreement would mean no nation, but slavery would go on unabated.)
So if this "example" is to be brought out again and again, the users should at least get the two sides of the dispute right. But then there would be less of a point.
39
@ERP Precisely! This fact is thrown about insinuating that racist Southerners were the ones demanding this when they wanted every slave to be counted in full (and get more power in the House). The Northerners were the ones who wanted fractional representation of slaves. This was a power struggle not a belief of how human slaves were as the article states.
One nitpick: Not "humans entitled to vote," as then and now, women counted in the determination of the population of a state but they were not eligible to vote in 1787! Opponents of slavery wanted only "free persons" counted. (Whether women were "free" within our current understanding of the word in 1787 is left as an exercise for the reader, but the founders certainly thought they were, or at least enough so as to be distinguishable from slaves.)
2
@ERP
What that leaves out, of course, is that the founders allowed slavery to go on in a country that proclaimed All Men are Created equal, the 3/5th compromise was a political decision, but the fact is the constitution had said a slave was not a human being, but property. You can argue, correctly, that they had to give up on slavery because they wouldn't have had a country otherwise, but the reality of the post revolution US was if people like Washington (who by that point was critical of slavery) and others had used horrible economic position of the slave states to force them to give up slavery in return for the government assuming their debts, the south may not have had much choice..but they didn't.
And the fact that the founders let slavery live to allow what they saw as a greater good, founding the US, says that the conservatives are full of it. The law said all men are created equal, and based on that slavery is a direct contradiction of the law, but the founders (and courts) ruled that the law didn't apply to slaves, even thought they couldn't argue slaves were not human, that contradiction is a call em as I see em, not following the law.
Indeed -- wisdom, kindness and love. This is the great fault of the progressive movement and the reason they hate the Constitution. It is not that wisdom, kindness and love are bad things. It is that they are entirely subjective and progressives believe they, and they alone, have the all-knowing power to define them.
A court ruled by the subjective notions of wisdom, kindness and love held by its individual judges is unbounded and completely lawless. When we say that our Constitution is the supreme law of our land, one would hope that it would have a specific meaning. Would you even buy a used car under a contract whose interpretive rules were wisdom, kindness and love?
Those who argue for the flexible and evolving Constitution want preferred outcomes that suit their circumstance, not an ordered society that respects our societal bargain. No thanks!
7
@AR Clayboy, I would love to buy a used car under a contract ruled by wisdom, kindness, and love. It would beat the heck out of the current rules: cheating, lying, and greed.
The "umpire" metaphor employed by Justices Roberts and Kavanaugh is just plain dumb. Stautes are complicated. Law is complicated. Interpreting texts is complicated.
55
@Chris Rasmussen To call balls and strikes, an umpire must envision an imaginary cube floating in the air. The position and height of the cube vary with the height of the batter and with the batter’s stance. The umpire decides if a sphere traveling at 100 mph and coming at him at an angle (and sometimes curving) intersects that invisible cube. It’s complicated.