I'm an Elena Kagan fan and a baseball fanatic. So one of the intriguing moments in Kagan's Senate testimony was when she addressed Chief Justice Roberts' famous "balls and strikes" analogy. Roberts had said at his own Supreme Court confirmation that the role of a judge, like that of an umpire, is just to call balls and strikes. He stated this as a limitation on judicial activism; he meant it as a limitation on progressive judicial activism. Progressives ever since have tried to say it ain't so, to argue mightily that judges aren't umpires. I have a different take on this. Rather than refute Roberts' analogy, I think we should embrace it. We should repeat it emphatically. You bet judges are like umpires. You bet they should just call balls and strikes. Why say this? Because as anyone who's ever played or watched baseball knows, in real life the strike zone expands and contracts. Umps do their best to discern whether a pitch was between the letters and the knees and within the borders of home plate. But their interpretations are subjective and thus variable. What convention deemed a high strike twenty years ago rarely gets called today. In fact, what one ump today calls a strike a different ump tomorrow will call a ball.
It turns out umpires and judges are not robots or traffic cameras, inertly monitoring deviations from a fixed zone of the permissible. They are humans. As they make their judgments, they can be influenced by prevailing norms about the zone, or even by how a catcher frames a borderline pitch to look like a strike. Kagan alluded to this when she pointed out Wednesday that "balls and strikes" might give people a misimpression that the law "is a robotic thing." But courtesy and confirmation Kabuki prevented her from outright discrediting Roberts' claim that the strike zone of the rulebook is the same as the strike zone of live play. Alas, Roberts's own record on the Court illuminates the difference. Right-wing jurists like Roberts are perfectly happy to stretch the strike zone when they seek a result that favors powerful interests. Indeed, the way Roberts ran the game in Citizens United went well beyond the allowable plus-minus variances of everyday strike-zone interpretation; he essentially invited a player not even on the roster to come to bat, then guaranteed the batter a walk. I'm not arguing that progressive jurists should do the same on behalf of their preferred interests. I'm underscoring that judges are umpires (and umpires judges). They know what the strike zone is supposed to be. Most of the time, they make a good faith effort to call 'em like they see 'em. Sometimes they err. Very rarely, as in Citizens United, they brazenly rig the result. In all instances, we should describe the game as it is rather than perpetuate the fantasy of mechanistic umpiring that the right both professes and subverts. True fans of the Constitution, like true fans of the national pastime, acknowledge the critical role of human judgment in making tough calls. We don't expect flawless interpretation. We expect good faith. We demand honesty. And if we tell the people this is what progressives want in judges, they will come more and more to respect the way we play the game.
This post originally appeared at ACSBlog.