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.
The wheel has turned in recent weeks. The current line is that “judicial activism” is a meaningless term, there being no other kind of judicial activity. Former justice David Souter, speaking at Harvard’s commencement, argued that it is a mistake to imagine that judges can reach obviously correct conclusions just by giving the Constitution a “fair reading.” Too many of its phrases are vague, too many of its values conflicting. The cases that come before the Supreme Court are hard, or they would have been resolved earlier. Liberal commentators have treated the speech as a brilliant refutation of conservative theories of judging. Sen. Al Franken has also given a speech asserting that originalism is merely a “talking point.”
#page#Other critiques of originalism have not disappeared: Liberals continue to argue that adherence to it would have prevented the Court from issuing such hallowed decisions as Brown v. Board of Education. At the moment, though, the dominant liberal argument is that all judges are guilty of activism and therefore nobody is.
These arguments depend on imprecision in the definition of judicial activism. To say a judge or a ruling is “activist” is to say that he or it departs from the proper enterprise of judging. Almost nobody has ever denied that the proper enterprise of judging includes invalidating some laws as unconstitutional. Therefore striking down laws is not in itself evidence of activism, and judges cannot reliably be ranked for their activism on the basis of tallies of the number of laws they strike down. These tallies are especially misleading when they concentrate solely on federal laws and thus ignore all incursions by the federal judiciary on the authority of state governments. Nor does almost anyone contend that judges should always follow precedent. Whether a decision overturns a precedent and whether it is activist must therefore be separate inquiries.
Conservatives do not claim that identifying the right result is always easy, either. When Chief Justice Roberts likened judicial decision-making to calling balls and strikes, he was making two points. The first is that the judge must be impartial, just as the umpire may not favor a team. The other is that the judge must try to discern the truth of the case; he does not create it. The strike is a strike whether or not the umpire calls it correctly. Roberts wasn’t arguing that judges are infallible; his argument implied the reverse. Judges will disagree and judges will err, but neither fact justifies abandoning impartiality as a goal. If a judge finds it hard to determine the original public meaning of a legal provision in some cases, the answer is not to substitute his empathetic sentiments or his view of enlightened public policy for that meaning.
An originalist sincerely applying his methodology may err, even grievously, but will not simply be indulging his own views. The popular appeal of originalism may have more to do with how it constrains judges than with its alleged ability to provide easy answers. Voters are willing to let laws they favor be struck down if they believe that a higher law to which the country has consented — the Constitution — demands it. They are less willing to accept a demand that they defer to the views of judges just because they have robes. Liberals scorn the conservative slogan that judges should not legislate. But their own accounts of the judicial role make the conscientious judge’s task identical to that of the conscientious (liberal) legislator.
While there is such a thing as conservative judicial activism, there is also precedent for overblown worries about it. Consider the liberal reaction to the Supreme Court’s “federalism revolution” of the 1990s, a series of decisions that had the New York Times’ Court reporter, Linda Greenhouse, speculating about the return of the Articles of Confederation. In the two most aggressive decisions, the Court ruled that the Gun-Free Schools Act and portions of the Violence Against Women Act went beyond the legitimate authority of Congress.
#page#These decisions, unlike the typical case of liberal activism, were inconsequential in their effects. Most states had already banned guns near schools. If Congress disliked the policies that resulted from the decisions, it had many ways to change those policies. It enacted a modified Gun-Free Schools Act with no interference from the courts; Justice Breyer’s dissent in the Violence Against Women Act case listed options Congress could choose to get around the ruling. The recent Lilly Ledbetter case — in which the Court threw out a woman’s complaint about sex discrimination in pay because the statute of limitations had run out — was widely denounced as conservative pro-corporate activism. But Congress was able to pass a new statute to undo the effects of the Court’s ruling. Liberal activism typically allows for no such recourse. (When the Supreme Court ruled against the death penalty for minors, it foreclosed almost all forms of legislative response.)
And the Court never did get around to reinstating the Articles of Confederation. It did not even do much to promote federalism after those few cases. This does not mean that the Court is never guilty of conservative judicial activism. In some cases, the Court may be enforcing provisions of the Constitution that were meant to be protected by other branches of the government; in others, the conservatives on the Court may not have looked extensively enough at the history of the provisions in question. But conservative activism is typically limited and rooted in the historic Constitution.
And while some cases are genuinely hard, the difficulty of interpreting the Constitution is also exaggerated. Roe v. Wade was not a hard call: It should have been obvious that the Constitution allows states to prohibit abortion, and it required elaborate sophistry to rule otherwise. The “due process of law” may require some interpretation, but the words pretty clearly do not create a right to sodomy. Some of the Court’s difficulties are self-generated, the result of its own activist precedents. Hard cases make bad law, goes the saying; bad methodologies make hard cases.
Another question that liberals rarely address — and never address persuasively — is this one: To the extent that constitutional phrases are indeterminate in meaning, why should it fall to courts to assign them a meaning? The argument for judicial review, as outlined in Marbury v. Madison, rests on the fact that we have a written constitution whose meaning can be ascertained. Prof. Sonja West writes that “Kagan should trust the American people’s ability to understand that eventually the law runs out and it is the justices who are tasked with filling in the missing parts.” Why should we “understand,” or agree? Who tasked the judges, and why should we think them better qualified to perform the task? If the Constitution merely lays out several “values” to which we aspire, and does not supply the materials for determining how to resolve conflicts among these values in cases where such conflicts arise — if, that is, former justice Souter’s characterization of the Constitution is accurate — then why should unelected lawyers instead of legislators decide how to resolve these conflicts? So wedded are liberals to an expansive view of judicial power that they do not recognize any need to answer these questions. They have not noticed that if they are right about the Constitution, the case for judicial review collapses.
Umpiring may not always be easy, but calling foul on liberals’ arguments is.