Private: The Judge as Umpire Metaphor Misses the Plate

By Cody Hoesly, chapter leader, ACS Oregon Lawyer Chapter

On March 10, 2010, ACS supporters gathered with the Oregon Lawyer Chapter to hear Professor Pam Karlan talk about a progressive vision of constitutional interpretation -- a vision she has embraced in her recent book Keeping Faith with the Constitution. Karlan (pictured) explained how her vision, which she termed "constitutional fidelity," confronts constitutional questions with an analysis of text, history and precedent, but also an appreciation for how society in the present day views a given issue and the real-world impact of Supreme Court decisions. In Karlan's view, that vision is both true to the Founders' intent, as well as modern day notions of justice, fairness, and constitutional meaning.

Karlan noted that "constitutional fidelity" is in large part a response to currently established doctrines such as textualism and originalism, which rejected the prior view of the "living constitution" as disjointed from text and history, and ultimately subject to the whims of individual judges. As Chief Justice Roberts put it, a judge should merely call balls and strikes. But Karlan explained that the baseball metaphor is a poor one, because calling balls and strikes itself is a subjective undertaking, subject to the sound judgment of the umpire -- just as deciding constitutional cases is subject to the sound judgment of the justices on the Supreme Court. Moreover, proponents of originalism and textualism frequently deviate from strict adherence to those doctrines when it would confound their preferred policy outcomes -- a level of individual input they claim to avoid. And originalists and textualists generally take into account all of the evidence that "constitutional fidelity" adherents would take account of -- it's just that they fill the blanks in with different, but no more valid, policy choices based on their own views.

The question becomes whether "constitutional fidelity" can gain ground against originalism and textualism. It can, but it will require a sustained program of support. Accordingly, as Karlan explained, it is not helpful when progressive judicial nominees embrace the baseball metaphor -- they ought to embrace the fact that a "wise Latina" adds a different perspective than another white male -- a perspective that will likely lead to different results in close cases. 

Constitutional Interpretation, Supreme Court