IDEAS

He can't be Chief Umpire

Roberts' baseball analogy works only if calls are made with 20-20 moral vision

BY DAVID O. BRINK
David O. Brink is professor of philosphy at the University of California, San Diego, and director of the Institute for Law and Philosophy at the University of San Diego School of Law.

October 2, 2005

Tomorrow will be the start of a new term for the U.S. Supreme Court, led by John G. Roberts, who just last week was confirmed as the 17th chief justice. Now 50 years old, Roberts could easily lead the court and help shape constitutional history for three decades to come. What shape might a Roberts court take?

So far we have little to go on other than slogans. President George W. Bush has repeatedly insisted on appointing "strict constructionists" who will interpret the Constitution rather than "legislate from the bench." In Roberts' opening remarks at his confirmation hearings, he used a time-honored baseball analogy to make a similar point: "Judges are like umpires. Umpires don't make the rules; they apply them." He also insisted that he would bring "no agenda" to his job as umpire, suggesting that he would not let his own values intrude into his work.

Bush and Roberts believe that it is the job of the federal judiciary to interpret the law, rather than legislate - in particular to interpret the Constitution, rather than create constitutional rights. They seem to think that other people, presumably judicial activists, fail to accept this more modest judicial role, which leads to various jurisprudential excesses.

The president and new chief justice are coy about identifying examples of judicial excess. But those who share their defense of judicial restraint are typically most concerned about various aspects of substantive due process and equal protection analysis that recognize the rights of the accused and the civil rights of under-represented groups to non-discriminatory treatment by the state.

The bete noir for many is the right of privacy, which is not mentioned in the Constitution and has been used by the Supreme Court to overrule legislation restricting access to contraceptives and a woman's right to an abortion, as well as legislation regulating consensual adult homosexual sodomy.

What is common to the disputed cases is that the Court has recognized constitutional rights by relying on potentially controversial moral and political reasoning. If an umpire ought not to let his values affect how he calls balls and strikes, and the Court should be an umpire, then these cases may exceed the bounds of legitimate judicial review.

Does this attack on judicial activism rest on a coherent jurisprudence? One suspects that the phrases "judicial activism" and "judicial legislation" are often used as simple perjoratives, to signal disapproval, and have no independent content. However, we can understand the condemnation of judicial legislation differently.

We live in a constitutional democracy governed by a separation of powers, with a division of labor between the legislature and the judiciary. It is the legislature's job to make law and the judiciary's job to interpret and apply the law. This has a democratic rationale. We want lawmakers to be politically accountable to those whom their laws affect, as legislators are in principle, and federal judges are not. It is this division of labor to which Bush and Roberts appeal in condemning judicial legislation.

Ours is a democracy in which there are constitutional constraints on legislation, including ones designed to protect the interests of individuals and political minorities from majoritarian interference. As Alexander Hamilton argued in Federalist 78, the separation of powers both requires the judiciary to interpret the Constitution and measure legislation against this interpretation (interpretive review) and condemns the judicial imposition of extraconstitutional values (non-interpretive review).

If we could establish that some decision or doctrine of the Court rested on non-interpretive review, then the separation of powers would provide reason to think that the decision or doctrine was an illegitimate exercise of judicial legislation. The problem is that hardly anyone advocates non-interpretive review. Every serious scholar now recognizes that the real issue is not whether to interpret the Constitution or to legislate, but how to interpret the Constitution.

Some commentators assume that interpretive judgments about the Constitution cannot be deeply controversial among reasonable people and, perhaps for this reason, that constitutional interpretation should be a value-free enterprise. This would be sensible if, as some believe, interpreting constitutional provisions is a matter of the plain meaning of explicit constitutional language or a matter of ascertaining the specific intentions of the framers.

These assumptions fit Roberts' umpire analogy. The umpire appeals to the plain meanings of rules of baseball, such as those that define the strike zone, and then relies on ordinary perception to determine if the pitch is a ball or strike. Any uncertainty about a call presumably would just be uncertainty about the actual location of the pitch, not uncertainty about the rules of baseball.

If we accept the analogy between the roles of the court and an umpire, we must conclude that the constitutional requirements of due process and equal protection cannot be controversial as a matter of law and that morally and politically controversial constitutional doctrines, such as the the exclusionary rule (which prohibits the use of improperly obtained evidence in criminal court) or a right of privacy must be problematic results of judicial legislation.

But the umpire analogy is flawed in ways that give the lie to these assumptions. Though there may be exceptional cases in which an umpire must interpret the rules of baseball, his routine duty is to apply the rules to what he observes. Any messiness is in the game or his perception of it, not in the rules.

But this is decidedly not the case with the Constitution and its application. The Bill of Rights famously guarantees individual rights against federal intervention, including the First Amendment guarantee of free speech and against the establishment of a religion; the Fourth Amendment guarantee against unreasonable search and seizure; the Fifth Amendment guarantees of due process and against the appropriation of private property for public use without just compensation, and the Eighth Amendment prohibition against cruel and unusual punishment. The 14th Amendment guarantees, against state interference, the privileges and immunities of citizens of the United States, due process requirements and equal protection of the laws.

These provisions all use general language to pick out morally and politically significant aspects of legislation. Especially in the case of the Bill of Rights and the 14th Amendment, this is just what one would expect from provisions designed to constrain legislation to protect important individual rights.

But there's no way that a court can do its work without making substantive moral and political judgments about the nature and scope of these rights. Indeed, precisely because constitutional rights act as brakes on what majorities may do, defense of these rights will typically be controversial and even unpopular, at least at the time of decision.

So recognition that the Court is employing potentially controversial moral and political reasoning to defend individual rights is not, as the critics of judicial legislation proclaim, a sign of jurisprudential pathology. It's what we should expect if the Court is doing its job.

This is not to say that whatever moral and political judgment the court makes is good jurisprudence. Judges must defend conceptions of the nature and scope of these rights that show them to be part of a morally attractive and historically sensible package of constraints on majority rule. But these are the terms on which judges must assess constitutional decisions and doctrines.

The rhetoric of judicial activism and legislation is just a diversion from the real work of examining the merits of rival conceptions of constitutional rights. This is the task for an umpire with a strong sense of constitutional history and 20-20 moral vision. Let us hope that, despite his disclaimers, Chief Justice Roberts meets this description.