Editor’s Note: Each week we cross-post an excerpt of Katrina vanden Heuvel’s column at the WashingtonPost.com.
Between some astonishingly awful refereeing at the World Cup and MLB umpire Jim Joyce’s infamous, perfect game-robbing miscall last month, it’s been a rough summer for the world’s arbiters of sport. So as Supreme Court nominee Elena Kagan prepares for her confirmation hearings this week, it’s an appropriate time to revisit—and retire—the famous “justice-as-umpire” analogy that Chief Justice John Roberts trotted out at his own confirmation hearings in 2005.
“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.”
It has become gospel that an American Supreme Court justice is supposed to check her life experience and her values at the door when she hears a case—just as an umpire is supposed to apply an objective strike zone to adjudicate pitches, a simple “who came first?” test when making calls on the basepath. But this is patently impossible.
Speaking at Harvard’s commencement in May, Justice David Souter dismantled the fallacy that a justice could perform his duty and still maintain absolute sterility and an unflagging devotion to the “facts” of a case. Souter contrasted Plessy v. Ferguson, the 1896 case that upheld segregation, with Brown v. Board of Education, the 1954 case that found it unconstitutional. “The members of the Court in Plessy remembered the day when human slavery was the law in much of the land,” Souter said. “To that generation, the formal equality of an identical railroad car meant progress. But the generation in power in 1954 looked at enforced separation without the more revolting background of slavery to make it look unexceptional by contrast. As a consequence, the judges of 1954 found a meaning in segregating the races by law that the majority of their predecessors in 1896 did not see.”
Souter then asked rhetorically, “Did the judges of 1954 cross some line of legitimacy into law making, stating a conclusion that you will not find written in the Constitution? Was it activism to act based on the current meaning of facts that at a purely objective level were about the same as Plessy’s facts 60 years before?” In other words, how is it that one slate of justices could see nothing wrong with the concept of segregation, while another saw it as antithetical to equality?
Read the rest of Katrina’s column at the WashingtonPost.com.