Roberts Said Judges Call Balls and Strikes. Conservatives Still Argue Over It

Every baseball fan knows the umpire's dilemma. The rulebook defines the strike zone in a sentence or two, and then a man in a mask has to apply it to a ninety-five-mile-an-hour fastball in a fraction of a second, with forty thousand people booing his judgment. Nobody has ever bought a ticket to watch the umpire. Nobody has ever gone home thrilled by the umpire. And every season, some pitcher swears the zone shrank in the ninth inning.

In September 2005, John Roberts walked into a Senate hearing room and told the country that a judge is like that man behind the plate. It was among the most successful pieces of political messaging in modern judicial history, and it has been a source of friendly fire on the right ever since. I want to take both sides of the conservative argument seriously, then tell you which one I find more persuasive.

What Roberts said, and what he meant

In his opening statement at his confirmation hearing on September 12, 2005, Roberts said: "Judges are like umpires. Umpires don't make the rules, they apply them." He added that the role of an umpire and a judge is critical, that it is "a limited role," and that "nobody ever went to a ball game to see the umpire." Then came the line that everyone remembers: he would remember that "it's my job to call balls and strikes, and not to pitch or bat."

Define the claim. The metaphor makes three assertions. One, the rules come from somewhere else, namely the people's representatives and the Constitution. Two, the judge's job is to apply them, not to write them. Three, the judge is to be modest about his own role, since the game is not about him.

All three are conservative commitments. The Founders, as the Federalist Papers show, wanted a judiciary that would be, in Hamilton's phrase in Federalist 78, the "least dangerous" branch, with "neither FORCE nor WILL, but merely judgment." A man who says he will call balls and strikes is saying that he will exercise judgment and will not substitute his will.

Why the metaphor won, and why it was a little too good

Politically, it was a masterstroke. It made the nominee sound neutral, humble and reasonable, and it put the burden on opponents to explain why they wanted a judge who would pitch or bat. Both parties have used it since, and nominees of both have borrowed it.

But the metaphor smuggles in a premise. It assumes that the strike zone is clear. In baseball, the zone is defined by the rulebook, yet every umpire has a slightly different one, and the debate over it is as old as the game. In law, the rulebook is the Constitution and the statutes, and the debate is over what the words mean. Anyone who tells you that interpretation is as simple as calling a pitch has not read a Commerce Clause case. So the metaphor is right about the judge's duty and silent about the method. That silence is where the conservative argument begins.

The restraint tradition: Thayer to Bork

The first conservative view says that the umpire metaphor describes exactly the right posture, and that the posture is one of deference to the legislature. This is the judicial restraint tradition, and it has a distinguished lineage.

The founding text is an 1893 article by James Bradley Thayer of Harvard, "The Origin and Scope of the American Doctrine of Constitutional Law." Thayer argued that a court should strike down a law only when its unconstitutionality is so clear that it is "not open to rational question." The reasoning was democratic and practical. The legislature, too, takes an oath to the Constitution, and it is the branch the people elect. If a reasonable person could think the law constitutional, the court should let it stand and leave the remedy to the voters.

Oliver Wendell Holmes carried that principle onto the Supreme Court. His dissent in Lochner v. New York (1905) said that the Constitution "is not intended to embody a particular economic theory," and that a majority's view of the economy should not be read into the Fourteenth Amendment. In the 1930s, after the Court had struck down parts of the New Deal, the restraint tradition became the rallying cry of the people who wanted the justices to stop imposing their own judgment. Felix Frankfurter, Learned Hand and Alexander Bickel were its heirs, and Bickel's book The Least Dangerous Branch (1962) gave us the phrase "the countermajoritarian difficulty" to describe what is awkward about unelected judges overruling elected legislators.

By the 1970s and 1980s, conservatives had a reason to like the tradition: the Warren and Burger Courts had read new rights into the Constitution that few of the Founders would have recognized. Robert Bork made the case in his 1990 book The Tempting of America, arguing that a judge who goes beyond the original meaning of the text is exercising a power the Constitution did not give him. In that tradition, the way to restrain judges is to teach them restraint, and the umpire is the model. When in doubt, he says, call it as the legislature saw it.

The strengths of this view are real.

1. It matches the structure of self-government. Elected legislators can be voted out, and judges cannot. A rule that tells the judge to defer in doubtful cases keeps the people in charge of the questions the Constitution leaves to them.
2. It limits the judge's temptation. The most dangerous thing a judge can do is decide that his policy preference is the Constitution. Deference is a firewall against that.
3. It has history on its side. The Lochner era, in which judges struck down labor laws on the strength of a theory of liberty of contract, is the standard warning about what happens when judges enforce their own views of economics.

The engagement tradition: Barnett and the presumption of liberty

The second conservative view says that the umpire metaphor, as the restraint school reads it, asks too little of the judge. This is the judicial engagement argument, associated with libertarian-leaning conservatives such as Randy Barnett, whose 2004 book Restoring the Lost Constitution argued that the Constitution carries a presumption of liberty and that judges should require the government to justify its restrictions. Clark Neily's book Terms of Engagement (2013) makes a similar case from the litigator's side.

Their argument runs like this. An umpire who always gives the home team the close call is not neutral; he is biased. If the courts presume that every law is constitutional unless it is obviously not, then the government gets the benefit of the doubt every time, and the citizen carries the burden of proof against his own government. Under that rule, the Constitution's limits on power exist on paper and little else. They point to the rational-basis test applied to economic regulation since the 1930s. In Williamson v. Lee Optical (1955), the Court upheld a law that required customers to get a prescription from a licensed professional before an optician could replace lenses in old frames, with the observation that the legislature might have thought the law would help. Under that standard, the Court will imagine a rationale if the legislature did not supply one. To the engagement school, that is not calling strikes. That is the umpire declining to call any.

They also point to 2005 itself. In June of that year, weeks before the nomination of the man who would be Chief Justice, the Court had decided two cases that disturbed conservatives and libertarians. In Kelo v. City of New London, a 5-4 Court upheld the taking of homes for transfer to a private developer under a plan of economic development, with Justice Thomas dissenting that the decision would let the powerful take from the weak. In Gonzales v. Raich, the Court held that Congress could reach marijuana grown at home for personal medical use under the Commerce Clause, with Justice Thomas again dissenting. In both cases, the restraint tradition said defer to the legislature, and in both cases deference led to a result that sat badly with the text.

The strengths of this view are also real.

1. It matches the purpose of a written Constitution. If the document limits government, someone must enforce the limits. Federalist 78 says so: "limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void." And Hamilton adds that without this, "all the reservations of particular rights or privileges would amount to nothing."
2. Deference is not neutral. It prefers the political branch. A judge who defers to a legislature is making a choice, and sometimes the choice favors the powerful over the individual.
3. The legislature takes the same oath. The restraint school says the legislature has a duty to follow the Constitution; the engagement school says that if it fails, courts must act, because no one else can.

Where they agree, and where the real fight is

Before choosing, I want to subtract the false disagreements. Both schools reject the living-Constitution judge who updates the text to fit his sense of progress. Both say the judge should follow the original meaning of the words, and neither wants courts to take the place of legislatures on questions the Constitution leaves open. The difference lies in what the judge should do when the text is clear and the legislature has crossed it. The restraint school says to be careful and to ask whether the violation is plain beyond rational question. The engagement school says that if the violation is there, say so, and do not wait for it to be obvious.

That means the quarrel is narrower than the slogans suggest. It concerns the standard of review and the burden of proof, not the goal. A fair summary: restraint conservatives fear the judge who strikes down too much, and engagement conservatives fear the judge who upholds too much.

The case that tests it: the mandate

Chief Justice Roberts himself supplied the best test case. In National Federation of Independent Business v. Sebelius (2012), he cast the deciding vote to uphold the Affordable Care Act's individual mandate as a tax, after holding that it could not be sustained under the Commerce Clause. In explaining his approach, he wrote that "It is not our job to protect the people from the consequences of their political choices." That is a restraint sentence if ever there was one. It says the Court will go to great lengths to avoid striking down an act of Congress and will leave the political consequences to the voters. Many conservatives were furious. They thought he had read the statute in a way that a fair umpire would not, and that he had saved a law by relabeling it. Others thought he had shown exactly the modesty the umpire metaphor promised. The debate that followed, which I cover in John Roberts Called the Mandate a Tax, and Conservatives Still Argue About Why, is the umpire argument in its cleanest form.

Which view I find more persuasive

Here is my verdict, and I will give the reasons rather than the mood.

I think the engagement school has the better of the argument about the text, and the restraint school has the better of the argument about the temperament. The text says "shall not." The Constitution is filled with commands directed at the political branches: Congress shall make no law, no state shall pass an ex post facto law, private property shall not be taken without just compensation. A judge who reads those commands and then gives the legislature the benefit of every doubt has turned a limit into a suggestion. Hamilton's phrase "manifest tenor" does allow some restraint, because it speaks of acts that are plainly contrary to the Constitution, but it also says that the courts' duty is to declare those acts void. The duty is not optional.

The restraint school has the better of it about the temperament, because the danger on the other side is real. A judge who believes he is the guardian of liberty is only one step from believing he is the guardian of whatever he happens to think liberty means. Lochner is the proof. Judges across the spectrum have found their own preferences in broad words like "liberty" and "due process." The discipline that guards against that is the habit of asking not "what would be wise?" but "what does the text say, and what did it mean when it was adopted?" Both schools accept that discipline. The question is how much humility a judge owes when the text answers and the legislature disagrees.

So I would put it this way. Call balls and strikes, and call them honestly. When the pitch is in the zone, the umpire does not get to wait for the manager's permission. The reason Roberts's metaphor works is that umpires do call strikes, loudly, even against the home team. The metaphor goes wrong only if it is read to mean that the umpire never calls one against the legislature. An umpire who refuses to call a strike on the home team is not modest; he is the reason the visitors stop showing up.

One more point, in fairness to the restraint view. The strike zone has to be defined by something other than the umpire's preferences, and in constitutional law the best candidate is the original public meaning of the text. I explain in Textualism and Originalism Are Cousins, Not Twins, and the Difference Matters why that matters, and in Why Originalism Is the Only Method That Binds the Judge as Well as the Citizen why it is the one method that binds the judge as well as the citizen. A judge who has a fixed meaning to apply is better able to call strikes against either party, which is what makes him neutral in fact and not just in name.

What the press makes of it

A note on the coverage, because it matters. When the Court issues a decision that upholds a law, reporters call the justices cautious or pragmatic. When it strikes a law down, they call the justices activist, whatever the reasoning. The umpire metaphor never survives the headline writers. A ruling is "a win for conservatives" or "a blow to progressives" before anyone has read the first paragraph of the opinion. If you want to know whether a judge is calling balls and strikes, do not read the story about the decision. Read the opinion, and ask whether the judge would have written the same reasoning if the parties' politics had been reversed. That test is harder than it sounds, and it is the only one that counts. On that point, How the Press Covers Supreme Court Decisions, and What the Stories Leave Out has a longer list of the tells.

The case in brief

1. Roberts's 2005 statement that judges call balls and strikes expresses three conservative commitments: the rules come from elsewhere, the judge applies them and the judge is modest about his role.
2. The restraint tradition, from Thayer through Holmes, Frankfurter, Bickel and Bork, says courts should defer to legislatures unless a law is plainly unconstitutional, because the legislature answers to the voters.
3. The engagement argument, made by Barnett and Neily, says that deference gives the government the benefit of every doubt and makes the Constitution's limits too easy to ignore, and Federalist 78 supports the duty to declare contrary acts void.
4. The best resolution is an honest umpire: a fixed meaning drawn from the original text, applied against either side, with humility about what the judge does not know and no waiting for permission when the text is clear.
5. The test of a judge is whether he reaches the same result when the parties' politics are reversed.

What you can do: read Federalist 78 in full, which takes about fifteen minutes and is free online, and then read the next big opinion with one question in mind, which is whether the judge would reason the same way if the parties had swapped sides.