Umpires at bat: on integration and legitimation.

• Author: Siegel, Neil S.

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)

1. 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, there is also much to be said for judicial boldness and even heroism in appropriate cases. Some of the most celebrated Supreme Court opinions in American history were hardly models of judicial restraint. A restrained approach in Marbury v. Madison, (15) for example, would have been to say nothing about judicial review after dismissing the case for lack of jurisdiction on nonconstitutional grounds. A restrained approach in Brown v. Board of Education (16) would have been to reaffirm Plessy v. Ferguson, (17) either by declaring the schools separate but equal or, more accurately, by declaring the schools separate and unequal. (18) Whether a case calls for restraint or decisive action or something in between seems less a theoretical question and more a matter of tact, context, and judgment.

   The umpire analogy, however, appears implicitly to embrace across the board a rather limited judicial role in vindicating constitutional rights, a judicial philosophy that is not easily reconciled with some bedrock precedents in the canon of our constitutional law and culture. Thus Chief Justice Roberts and Justice Alito felt compelled explicitly to endorse Griswold v. Connecticut (19) during their confirmation hearings, (20) and Justice Alito distanced himself from his past criticism of the Court's reapportionment decisions. (21) It apparently did not matter that a conservative President had nominated them and a conservative Congress would be deciding whether to confirm them.

   The umpire analogy is more deeply problematic in other ways. It might even have proven problematic for the nominee himself had any Senator elected to hold then--Judge Roberts to his own imagery. If Supreme Court Justices are mere umpires--if their primary responsibility is to call balls and strikes and to determine whether a hit ball is foul or fair--then surely the nominee could have told us, say, whether the regulations of abortion at issue in Casey (22) were a ball or a strike, foul or fair. That is, he could have told us whether the Constitution protects a right to abortion, and if so, to what extent. Why did Roberts refuse to talk about his view of Casey? Why would he not even say anything revealing about how he would endeavor to determine the contours of the strike zone? He declined to share his views because the umpire analogy is inaccurate in the sense that everyone cares about most during a confirmation hearing and beyond. His refusal to answer substantive questions about constitutional law reflects the obvious truth that Supreme Court Justices are much, much more than baseball umpires, (23) at least in the formalistic sense that Roberts was apparently conceiving of umpires.

   Roberts was presumably relying on the fact that a hit ball is either foul or fair, and that the baseball rule defining the strike zone seems relatively clear. (24) Indeed, Roberts seemed to be assuming that controversy arises regarding particular instances of rule application--that is, whether a hit ball was in fact foul or fair, and whether a pitch was in fact a ball or a strike--not concerning the meaning of the rule itself. It turns out that Roberts was wrong about much of baseball (and about sports more generally), but that is not my main concern here. (25)

   Rather, my primary concern is that Supreme Court Justices cannot even agree on the basic contours of the "strike zone" when it comes to such fundamental matters as whether the equal protection clause presumptively prohibits racial classifications or instead targets practices of racial subordination. (26) That is because the constitutional text itself is indeterminate (27) and the potential source materials for gleaning its meaning in particular settings are both numerous and contested. (28) Jurists and commentators offer diametrically opposed accounts of what authorizes judicial action while simultaneously restraining judges from becoming mere "players" in a litigative "game." (29) They agree that there are still limits in a world without judicial umpires (that is, the real world), but they disagree sharply on what the limits are and where they come from. (30)

   The existence of robust interpretive dissensus about limits--well beyond such disagreements in sports--is related to another problem with the umpire analogy, even considering the work of real umpires. Baseball umpires are not supposed to show up at the ball park with any advance inclination to rule in favor of one team or the other. Yet it is perfectly consistent with the faithful discharge of a Justice's responsibilities to approach a case with a strong predisposition to favor the arguments of one side, even though that predisposition may threaten to collapse the distinction between litigant and cause. (31) The Court has said--correctly in my view--that "[a] judge's lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason." (32)

   One could go on. No Major League ball...