The “Umpire” and the Myth of Modern Judicial Formalism
“Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them.
The role of an umpire and a judge is critical. They make sure everybody plays by the rules.
But it is a limited role. Nobody ever went to a ball game to see the umpire.”
So said Judge John Roberts, Jr., at the opening statement of his confirmation hearings to be Chief Justice of the United States. Judges Alito and Sotomayor folowed this metaphor, Sotomayor in particular, during her confirmation hearings.
As I said in an earlier post, this idea of Judges as umpires, while idealistic, is wrong. In Major League Baseball (my apologies non-Americans) the Umpires calls balls and strikes. I cannot think of a single time, ever, having watched hundreds of baseball games, of any pitch ever, where I would say, “If only Umpire so-and-so were here, he would make a different call.” In fact, I do not even know the name of a single MLB Umpire.
However, I do know the names of many Judges. And it is frankly, laughable to suggest that Judges are as neutral as Umpires. If they were, it certainly would not matter at all who we appoint, right? We could just pick the name of a lawyer (or even a non-lawyer!) out of a hat, because they’re all the same, no?
Would the same Umpire Justice, who in 1973, dissented in the case Forman v George, which overturned the death penalty statues of the Federal Government and every State who had them, wrote, “The Court evidently [is] persuaded that somehow the passage of time has taken us to a place of greater maturity and outlook. The argument, plausible and high-sounding as it may be, is not persuasive,” (my bold) later, write, also as Umpire Justice in 1994 Callins v James, dissented from the denial to hear a death penalty case, “From this day forward, I no longer shall tinker with the machinery of death”?
Well there, that seems to be the very same Umpire, saying two different things, with the only thing that changed was time, not the Constitution.
While it’s a very romantic and a very appealing idea that judicial decisions are rendered mechanically, they’re not. We should choose our Judges based on their legal philosophies, and they are different, and they matter, and we should acknowledge that.
Dost thou mean Furman v Georgia?
Granted, the concept of an “umpire” judiciary is ridiculous. That being so, why have a judiciary at all? If the legislative branch of government are elected according to their political and legal philosophies, and judges act according to theirs, why not simply have the Senate sit as the supreme court?
In my mind the first thing to remember is that not all judicial decisions are political; not by a long shot. This is true even in the Supreme Court: Even though it tends to deal with areas where the law is hazy, often the decisions are on matters of procedure or matters of substantive law which are not overtly political. So Dave, please don’t think of throwing out the baby with the bathwater!
Beyond that, I’ve written about this before (http://unifiedview.blogspot.com/2007/08/politics-and-judiciary.html – it’s worth reading, honest!).
The summary of my view is this: Having judges make political decisions is a flat out bad idea, because they are not (and should not be) subject to democratic control in the same way as the legislature and executive, and also because they lack the tools and expertise to analyse the consequences of their decisions. Therefore in general, judges should be as apolitical as possible and uphold the law as set down rather than making it what they believe it should be.
Now the rider to this is that the USA has a particularly sticky situation when it comes to legislative intervention. It is near-impossible to amend the Constitution on any contentious matter. Moreover, the federal legislature is limited in what they can legislate, but Americans identify with the whole country and wish to have a say over the laws of all states (so liberals on the east coast are concerned with anti-gay laws in the deep south, and conservatives in the deep south are concerned with abortion on the east coast in a way that they aren’t when it comes to foreign countries). These two lead to deficiencies in democratic control and accountability, and the Supreme Court steps in to ease these problems. I can understand why, and there would be massive problems if it didn’t. But this is far from an ideal state of being.
On this matter therefore, I think we Brits have got it far better. Parliament can rule on anything (subject to human rights controls which it could, God forbid, do away with) so the courts don’t need to remedy democratic stalemate in the same way. Note however that I’m not arguing against legal controls on state authority, only that they should be subject to amendment by popular vote.
In the UK, there are no legal controls on state authority. Parliament is sovereign. One only has to look at the cases where the Law Lords or the ECHR have flagged up laws on the grounds of human rights only for parliament to legislate around them.
But this is not the immediate issue. Jeff is making the argument that the idea of a judicial “umpire” is naive – but isn’t that what you are arguing for Pete? Someone to interpret the laws as they are? In turn Jeff is saying we’re all human, we are all motivated by drives which, implicitly or explicitly are political – and these colour everything we do, say, read or experience.
And so my question is, if that is true, what is the point of a judiciary?
You make the case that sometimes we need a body to rule on issues of procedure – but I see no bar to, in a bicameral system, appointing such a responsibility to one of the chambers in the same way that the US Senate is in sole charge of ratifying appointees to executive or judicial office.
Again, I’m sure even Jeff isn’t arguing that the idea of the judicial umpire is absurd in all or most cases. As I said, overwhelmingly the decisions to be made are not overtly political. Appointing these to an elected body would would simply degrade the quality of the rulings – you just have to look at elected state judges in the US to see that.
The judiciary is immensely valuable because they are legal experts who are insulated from the pressures of the popular vote. Now, sometimes they will have to make decisions with political elements and implications. All I am saying is that the approach then should be to stick to the law as far as possible, and where something is controversial, its reform should be left to Parliament. This is basically the approach of our House of Lords (the judicial bit, soon to be the Supreme Court).
To question the role of the judiciary on the basis of a few tricky cases is astoundingly bizarre!
At the lowest level of constitutional court systems, many cases can be easily decided.
And even at the Supreme Court, there’s always a number of unanimous cases. But it seems to be absurd to suggest, particularly at the Supreme Court, which in this modern age, unlike even fifty years ago, can almost entirely pick and choose which cases its to hear, that it follows this umpire choice.
Cases don’t get to the Supreme Court through some unbiased, mechanical procedure. Four Justices vote to hear a case, of the thousands (ten of thousands, perhaps) that are petitioner to the high Court. Cases get to the Court because a number of Justices choose to bring the cases there.
Now, the Justices certainly can and do choose to hear cases for which they all agree unanimously, but it seems so overly simplistic to me to suggest that it’s simply a mechanical, gut reaction like an “umpire,” when in reality even the simplest Supreme Court case involves reading hundreds of pages of briefs and writing tens of pages of opinions. And a more complicated case has thousands of pages of brief, amicus briefs, lower court decisions, and hundreds of pages of opinions.
Calling it an “umpire” devalues the academic and intellectual component of the law. And that is where ideology comes into play. Judges have different ideas of how to approach the intellectual ideas of the law, and certain ideologies tend to be favored by people of different political persuasion.
Which was, thank you Jeff, the point I was driving at – something particularly relevant as our own “Supreme Court” is soon to be up and running.
“Calling it an “umpire” devalues the academic and intellectual component of the law.”
Okay, fair enough.
“And that is where ideology comes into play.”
Not necessarily. Just because coming to a conclusion requires intellectual examination doesn’t mean that ideology needs to get involved.
“Judges have different ideas of how to approach the intellectual ideas of the law, and certain ideologies tend to be favored by people of different political persuasion.”
Okay. We all know that conservative judges on the Supreme Court don’t actually do what they say and avoid ‘judicial activism’. But that doesn’t mean that it would be impossible to do so, just that they don’t want to. So while your statement is true, I’m saying that it need not be.
In the UK, that’s what tends to happen. You might get a whiff of the Law Lords’ political views from what they say, but overwhelmingly they don’t push a political agenda in their judgements. I think this is the crucial reason why their role is not controversial in this country, whereas it is a constant font of political controversy in the US.
As I said, I think there are particular structural problems in the US legislative system which make adopting the otherwise-correct umpire position non-ideal. This for me is the justification for liberal judges doing things like creating the right to privacy, even if they can’t say so. But this does not mean that there is something wrong with the umpire model; rather there is something wrong with the US constitutional settlement.