Robert Bork, John Roberts, and Balkin’ Bob Davidson

Chris Eisgruber

This post is the second of three marking the 20th anniversary of the Senate vote rejecting Robert Bork. I ended the first post by referring to the myth of the neutral umpire. The New York Times editorial page supplied fresh evidence of the myth’s power on September 30, as the Supreme Court was readying to open its term. (The editorial is here ).

The Times lamented that John Roberts was not the neutral umpire he had promised to be in his confirmation hearings. His votes last term, The Times observed, were staunchly conservative. I agree. The editorial concluded with the proclamation that “if the justices act as umpires and call balls and strikes, this term could produce some real victories in voting rights, the death penalty and civil liberties.”

What could The Times have had in mind? As others have noted, the problem with Roberts’s promise to be an umpire is not that he failed to keep it, but that it made no sense. In baseball, umpires apply clear rules to contested facts. They have to answer questions such as, “Did the ball cross the plate, or was it an inch outside?”

Sometimes their calls are controversial. Indeed, some umpires are controversial. Baseball junkies argue about umpires like Balkin’ Bob Davidson, who got his nickname not because he reads Jack’s blog but because some people think he calls too many balks.

Yet, even the controversy over Balkin’ Bob focuses on the application of clear—if highly technical rules—to factual details. For umpires, disputes about the meaning of the rules are rare. They come up occasionally—does putting too much pine tar on a bat invalidate a home run hit with it?--but not often.

On the Supreme Court, matters are reversed. The Court takes only cases in which the law is unclear. Indeed, for the most part, the Court takes only cases in which capable judges not only can, but in fact have, disagreed about what the rules say.

In principle, Supreme Court justices could avoid difficult judgments by deferring to elected officials whenever the Constitution’s meaning was unclear. In my view, this broad-brush deference would be a mistake, but there is still a substantial amount to be said in favor of it. Not surprisingly, it has distinguished defenders, including Mark Tushnet and Jeremy Waldron.

In practice, though, no recent justice has consistently practiced such deference. Every justice, liberal or conservative, has thought it desirable to allow his or her controversial judgments about constitutional meaning to trump the views of elected officials with regard to some issues.

The problem with John Roberts, then, isn’t that he has allowed his values to influence his jurisprudence—that’s inevitable. The problem with Roberts—if you agree that there is a problem—is that his values are extremely, rather than moderately, conservative. And the problem with the current highly choreographed confirmation process is that it allowed Roberts to win confirmation without revealing much of anything about those values.

Values matter in Supreme Court adjudication. For that reason, they must matter, too, in the Supreme Court confirmation process. In The Next Justice, I try to describe how that can happen, and in my third and final posting in this series, I will summarize some of the book’s recommendations.
Posted 6:26 PM by Chris Eisgruber [link]