Umpires at bat: on integration and legitimation.

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Umpires at bat: on integration and legitimation.

INTRODUCTION

During his confirmation hearings, Chief Justice Roberts captured the public's imagination when he offered an interpretation of the role that judges play in our society when interpreting the Constitution. "Judges and Justices are servants of the law, not the other way around," he said. "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 an umpire." (1)

In this inquiry, I identify some tensions between the understanding of the judicial role animating the umpire analogy and the actual practice of constitutional adjudication in the race-conscious student assignment cases recently decided by the Supreme Court of the United States. (2) I argue that those cases vividly illustrate how inapt the umpire analogy is if one takes its appeal to formalism seriously as a statement about how judges can or should execute their responsibilities in constitutional cases. (3)

The umpire analogy would have judges "just" decide constitutional cases according to "the rules." Judges, however, cannot "just" decide constitutional cases according to "the rules" because they cannot agree on what the rules are in the vast majority of the most important cases. Judges cannot agree on what the rules are in such cases because a critical purpose of constitutional rules is to express a social vision, and many social visions in contemporary American society are deeply contested. Instead of pursuing the impossible task of simply applying "the rules," the judiciary does its job and sustains its institutional legitimacy over the long run in significant part by articulating a vision of social order that resonates with fundamental public values. The school cases exemplify a social practice in which judges make contested appeals to popular ideals in fashioning--not merely applying--the rules that constitute contemporary constitutional law.

In Part I, I examine the virtues and vulnerabilities of the umpire analogy. In Part II, I identify pertinent parts of the judicial opinions on voluntary integration plans. In Part III, I explore what those opinions elucidate--and what the umpire analogy occludes--about the preconditions of law's public legitimation and the purposes of the institution of law, particularly in the area of constitutional law. (4)

I. JUDICIAL UMPIRES?

Politically, Roberts' use of the umpire analogy was an instant success, (5) and it is worth considering why. The image may have tapped into powerful myths about the judiciary. Much of the public may think--or want to think--that judges can and should decide even the most momentous constitutional cases according to "the law." They may further believe (or want to believe) that "the law" is autonomous of contested social values, fixed in advance, politically neutral, and susceptible of relatively uncontroversial application. (6) There is much to say about the disconnect between that view of judging and the realities of judicial practice. Initially, however, it is worth inquiring whether there are senses in which the umpire analogy conveys important truths about the practice of judging. (7)

There are at least two senses in which the umpire analogy captures part of the reality of judging. Like an umpire, judges are not supposed to consult certain considerations in certain contexts. For example, nearly everyone would agree that judges should not decide controversial cases like Planned Parenthood v. Casey (8) based on--that is, just because of--the platform of their political party. Relatedly, almost all would agree that judges should not render decisions according to their "first-order partisan commitments" (9) or personal policy preferences. Moreover, examples abound of instances in which Justices decline to do so, (10) examples that should not be readily dismissed. (11)

Another sense in which the umpire analogy rings true lies in the notion of restraint. That idea includes an appreciation of the limits of the judicial process and an abiding respect for stare decisis and other governing institutions. (12) The Court does not have the same lawmaking latitude as the Congress or the same policymaking discretion as the Executive. The Court is also not well situated to decide every question anew, or to micromanage much democratic experimentation at the state and local levels. For example, a Justice who regarded him- or herself as an umpire in that sense might have approached the recent student assignment cases with some deference to the integrative aspirations of local communities, which have been struggling around the nation to craft "workable solutions to difficult problems." (13)

Accurate as the umpire image is in those hardly trivial senses, (14) it remains problematic. I begin with the question of judicial role. While there is much to be said for judicial restraint in appropriate cases, ...

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