Into an opening statement that churned as slow as molasses, Judge John Roberts sneaked a revelatory comment. Wrapping up the first day of confirmation hearings yesterday (Sept. 12), he compared service on the Supreme Court to the ministrations of a baseball umpire.
"I will remember that it's my job to call balls and strikes and not to pitch or bat," Roberts said.
The press hounds, whose snouts were turned up to 11 in hopes of sniffing out something of interest to report from the hearings, totally misinterpreted his allusion. Proving that they don't know baseball—and that they definitely don't know the art of umpiring—the press corps treated the balls and strikes quip as Roberts' vow to judge cases independently and fairly, and not use the power of the court to further his own agenda.
In today's hearings, Sen. Joseph Biden, D-Del., and Sen. Herb Kohl, D-Wis., rejected the strikes and balls analogy as specious. But I think Roberts' analogy holds up remarkably well, so well that he could extend it further: Both groups of lawgivers come to work in dark costumes; both hold insufferably high opinions of themselves; both inure themselves to a crowd's catcalls; both worship tradition and their own authority; and perhaps most important, both regard themselves as absolute dictators within their domains.
When Roberts said his job was "to call balls and strikes," he was asking the Senate Judiciary Committee to ask itself, What is a strike? Originalists in these matters might say that a strike is what its 1887 rulebook definition says it is, "a pitch that 'passes over home plate not lower than the batsman's knee, nor higher than his shoulders.' " Or they might accept some more recent official definition.
But a strike has never been what the rulebook says it is. This elementary unit from which a baseball game is constructed is whatever an umpire says it is. Ken Kaiser, who umpired in the American League from 1978 to 1999, stated this truth with philosophical precision in his memoir, Planet of the Umps.
"The strike zone as defined in the rule book … is a myth. It doesn't exist. It's a nonexistent imaginary box. It has always not existed," Kaiser writes.
According to Kaiser, no two umps see the same strike zone. They view the plate from different angles, react differently to pitches, and change their opinion of what a strike is from batter to batter. When umpires say they call balls and strikes the way they see them, they mean it literally. They are the strike zone.
Likewise, the law is whatever Supreme Court justices say the law is. Just as no two umps see the same pitch, no two justices view the same judicial strike zone. If they did, every decision would be 9-0. Oh, the justices are supposed to draw on the Constitution and consult binding precedents in their rulings, just as umpires are instructed to call games in accordance with the contents of the Major League Baseball rulebook. But established law and baseball rules are sufficiently complex to leave wiggle room for less than objective edicts from justices and umps. As Kaiser puts it, "The best way to stop an argument is to quote the specific rule that you used to make a call, even if you have to make up that rule."
Umps and justices are different than the amateurs who second-guess them in that they must labor to understand the balk rule and the Rooker-Feldman doctrine. But often their toughest task isn't being right, but selling the call. Justices must write blustering, confident, omniscient decisions, even though they may harbor doubts. When confronted with photo-finish ties at first base, umps must either call them "safe" or "out" with equal vehemence. On this score, umpires have it worse than justices: They must gird themselves for spittle-filled arguments from dirt-throwing managers who storm the field to protest close calls. Imagine what American jurisprudence might look like if we allowed Alan Dershowitz to rush the bench and bump chests with Antonin Scalia.