Umpires are having a rough season. It’s bad enough that their blown calls are getting criticized. Now liberals are calling their very humanity into question.
Judging from their writing, the most pressing project for liberal legal writers right now is to discredit Chief Justice John Roberts’s metaphor of the judge as umpire. The consensus is that the metaphor reduces judges to machines. Adam Cohen, writing in Time, criticizes Roberts’s umpire talk, complaining that conservatives make judging sound like an “easy and uncomplicated” matter of “mechanically applying a rule.” Dahlia Lithwick, writing in Slate, concurs: “Justices can no more be neutral umpires . . . than they can be dispassionate microcomputers.” Law professor Sonja West, also writing in Slate, denounces the ideal of the justices as “robots” that “mechanically apply the law to the facts.” It may be that making this point is a condition of publication at Slate: Former assistant attorney general Walter Dellinger was there, too, in recent days, noting the impossibility of deciding cases through “applying mechanical logic” to the Constitution.
Okay, okay: We get it. The idea that judges should be robots is simplistic. So is the critics’ understanding of umpires. Who gave them the idea that they never make tough calls? Not Roberts, whose metaphor entailed no such idea. The understanding of judging that liberals are currently seeking to popularize, on the other hand, is not simplistic. But it is both mistaken and self-defeating. They mean to make the case for an expansive judicial role. But they are unintentionally undermining the case for letting judges review laws at all.
Underlying the attack on umpires is liberals’ worry that they are losing the debate over judges. They are confident that Elena Kagan will be confirmed; a Senate split 59–41 for the Democrats will see to that. But the arguments they made during the confirmation hearings for Roberts and Samuel Alito did not seem to move the public. Even more dismaying for liberals, last year Sonia Sotomayor did a passable imitation of those conservative justices in her own hearings. The rhetorical triumph of judicial conservatism is not only demoralizing for liberals. It imposes constraints, however weak, on their ability to move the courts left.
The liberal response over the last few years has been to poach the language of judicial conservatism. Most conservative legal thinkers are “originalists”: They believe that legal provisions, including constitutional ones, should be read the way the informed public of the time they were enacted read them. Academics have labored to create and defend a “liberal originalism” that connects liberals’ current judicial ambitions more tightly, at least in rhetoric, to the Founders and the ratifiers of the Reconstruction Amendments.
Liberal polemicists and politicians have joined the academics in portraying the conservative justices on the Supreme Court as the real judicial activists. They usually point to the Citizens United decision, in which Justice Anthony Kennedy joined the Court’s four conservatives to strike down a restriction on political advertising last year, as their prime example. In that case, the Court both struck down a democratically enacted law and overturned one of its own precedents. Liberals also brandish studies that show that the conservative justices are more likely to strike down federal laws than the liberal ones are.