Chief Justice John Roberts, Umpire

John Roberts, Umpire

I remember when John Roberts was testifying at his confirmation hearings comparing justices to umpires as though they just have to apply the law to the facts in front of them—no more, no less.  Here’s the quote:

“Judges are like umpires,” Roberts said. “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.”

Many commentators at the time felt that this was a highly simplified, if not distorted view of what justices really do.  But I like the analogy for what John Roberts did regarding his ruling that the Affordable Care Act was constitutional.  No, I’m not saying that John Roberts dispassionately looked at the law and found that, holding a perfectly objective ruler to the Act and measuring it carefully, it fit with the Constitution.  Far from it.

John Roberts’s role was more like those times when as fathers, we are obligated to umpire our own son’s little league game because the regular umpire somehow didn’t show up.  In these circumstances, usually one of the fathers just stands, without protective gear, behind the pitcher and does the best that he can with the balls and strikes.  But what happens when your own son walks up to the plate?  Here’s where the John Roberts analogy kicks in for me.

Obviously, a father wants his son to do well in the game.  But as an umpire, there is also a matter of personal integrity and a desire that the spectators see that there is no favoritism involved.  I think that it is almost universally the experience that that son had better hit his way on to base.  Because, if there are any pitches just off the corner, the son-batter is not going to get the call.  As a matter of fact, I’ve seen several fathers call their sons out, with relish, in such situations.

Similarly with John Roberts.  We all know what political “team” he is rooting for.  Yet there is the matter of personal integrity and standards in the law.  This is the “Roberts Court.”  And if the “Roberts Court” became a predictable, Republican-appointees-always-support-the-outcomes-desired-by-the-Republican-Party Court, then the Supreme (Roberts) Court, Chief Justice Roberts personally, and ultimately the country would be diminished.  The citizens wouldn’t have to use their brains to understand the issues and perhaps the Supreme Court wouldn’t either.  Just count up five Republican appointees vs. four Democratic appointees.

So the Affordable Care Act was pitched up to the plate by the Obama Administration.  It was a close pitch.  Several “conservative” justices in the federal appellate courts thought it was a strike.  Many conservative legal minds thought it required a stretched strike zone.  Almost all moderates though it was actually close to the middle of the plate.  And under these circumstances, John Roberts called “his” team, “Out!”

I’m sure that when a future Democratic administration bounces one up to the plate, it’s not going to get the call from the Roberts Court.  On the other hand, maybe the Republicans are just going to have to hit to get on base (with actual health-care legislation) and not count on a friendly umpire to walk them on the close pitches.