Balkinization  

Wednesday, October 17, 2007

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.

Comments:

The story goes that Hall of Fame umpire Bill Klem was out drinking with a couple of his fellow umps. One boasted: "I calls 'em like I sees 'em." The other replied: "I calls 'em like they are." Klem put down his drink, turned to them, and said: "They ain't nothin' 'til I calls 'em."
 

I have trouble calling someone "extremely" conservative based on either (i) decisions where he is in the majority or (ii) decisions upholding laws enacted by democratically elected legislatures. Can you demonstrate why you call Roberts "extremely" conservative without reference to opinions in either of the two preceding categories? And then demonstrate that Ginsburg and Souter are less extreme by showing that each had fewer opinions where he or she (i) was in a minority or (ii) sought to overturn legislation enacted by a majoritarian political body?
 

I have trouble calling someone "extremely" conservative based on either (i) decisions where he is in the majority or (ii) decisions upholding laws enacted by democratically elected legislatures.

This seems obviously incomplete as a standard. After all, we might call someone "extreme" based on the language in the opinion (or concurrence) even if we agreed with the result. In addition, someone who believes Roberts is "extreme" might also believe that Scalia and Thomas and Alito are "extreme" also; thus, being in the majority wouldn't necessarily immunize someone against being considered "extreme". Finally, democratically elected legislatures occasionally do outrageous things (e.g., enact segregation). A judge willing to uphold such laws, rather than to supply the Constitutionally contemplated "check and balance" might well be considered "extreme".
 

Well, Mr. Field, the Almighty doesn't direct my politics, so the only neutral standards I can locate for "extremism" are the opinions of majorities of (i) judges or (ii) my fellow citizens. Obviously you feel your politics are inspired enough to enable you to sit in judgment of both groups. If you had any power, that point of view would make dangerous, but thankfully you don't.

But I agree with your minor point about language. I will allow, as evidence of extremism, opinions where the majority refuses to join the opinion event though they concur in the result.
 

"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."

But when the legal community is enamored of theories of 'interpretation' which seek the meaning of texts outside those texts, in pseudo-empirical inquiries into 'evolving social standards' and subjective prudential concerns, disagreement about what the law 'says' could frequently be described as disagreement about what the law should say.

That capable judges can disagree does not imply the impossibility of objective judgment, if judges are encouraged to disdain objectivity.
 

the only neutral standards I can locate for "extremism" are the opinions of majorities of (i) judges or (ii) my fellow citizens.

This ignores the fundamental instability of majority rule. As Madison said in Federalist 10:

"The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere.... Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true."

It's the Court's job to counter-balance this tendency. There are far too many examples of cases in which the justices backed the majority view of the time, only to find us all now ashamed of that conduct: Dred Scott, Plessy, Korematsu, and many others. I can only hope that John Roberts might profit by their example.
 

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Does anyone else find this insistence on objectivity to be quaint? Your average high school kid is able to pick up on the idea that both language and culture evolves over time, so meaning is therefore constantly in flux.

Certainly, the debate over what something "says" is a debate over what something "should say." We're only kidding ourselves if we think that in some golden past, objectivity was not only a goal, but a perfectly attainable one.

Texts cannot stand alone and have meaning. They have to be related to external conditions (or preconditions) in order for any meaning to be derived. What would the Constitution be without the English language? Given that the framework used to write a text is evolving, is it really so ridiculous to think that the meaning of the text would change as well? Or would it be even more ridiculous to think that a text has one objective meaning that can endure the plethora of changes that occur in the language with which it was written?

It seems to me this was discussed ad infinitum in the 1980s...why is adherence to this "umpire" myth even a possibility? I understand the desire for objective justice, but I simply can't fathom why anyone would believe that that's the way the world works--or has ever worked.
 

"We're only kidding ourselves if we think that in some golden past, objectivity was not only a goal, but a perfectly attainable one."

I wouldn't say I find it quaint, I'm actually quite annoyed by this false alternative that always gets thrown up, where a deliberate embrace of subjective judgment is supposed to be the only alternative to humanly impossible perfect objectivity. And where simply striving for objectivity, and achieving it more often on that account, is simply not worth considering.rod
 

If you are a baseball umpire, how do you decide whether a batter has checked his swing or offered at a pitch?

There is absolutely nothing in the Rulebook to guide this decision. The Rulebook only says that if you "swing," it's a strike.

Yet we hear baseball commentators frequently mention various rules of thumb, such as "He went halfway" or "The bat crossed the plane of the plate" or "He broke his wrists." Each one of those is completely made up.

In this respect, umpiring and judging are quite similar.
 

I wouldn't say I find it quaint, I'm actually quite annoyed by this false alternative that always gets thrown up, where a deliberate embrace of subjective judgment is supposed to be the only alternative to humanly impossible perfect objectivity.

I understand that, although I would disagree that it's presented as an alternative. What gets me riled up is when somebody professes to be all about the objectivity, then falls into the same ideological grooves any casual observer could have predicted they would fall into.

Why play these games?

If we're going to make decisions based upon our ideological preferences, why not state those preferences outright beforehand? Something like "While I strive for objectivity in most cases, I'm totally going to shut down anything that remotely looks like affirmative action" would suit me fine because then the Senate could make an informed decision.

Instead, we get tight-lipped weasels (albeit polite and demure ones) that spend their time in the confirmation process claiming to be bastions of objectivity while putting as little useful insight to their thought processes as possible into the public record.
 

The problem with Roberts—if you agree that there is a problem—is that his values are extremely, rather than moderately, conservative.

I see that I'm not the only one who is hoping that Mr. Eisgruber might eventually find the time to come up with an argument -- any argument -- to support this charge, which he has made more than once.
 

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