Pigeons All the Way Down, or Ejecting the Umpire

How unfortunate that my first post here should be a reaction. Co-contributors have requested that I exhibit decorum, and forgo the string of profanities that characterized (distinguished!) my earlier on-line missives. The limitation has drastically reduced my creative output. Sea legs are forthcoming. In any event, my colleague has spurred me to write by invoking my least favorite judicial fallacy—that of the umpire.

I will toe profanity's onomatopoetic edge by calling the myth of the Supreme Court umpire "transparently asinine."

My colleague is, of course, a wise man, who has said nothing incorrect. He merely seems not to share my terrific outrage every time a would-be Justice suggests to a Senate committee that we would save time and anguish by replacing him with a computer, so irrelevant is his own personal (or, perish the thought, political!) judgment to the hard mechanics of sussing out judicial truth.

Below, Vern posits that most law is simple. I agree with the fundamental premise. To paraphrase a professor of mine, perhaps indeterminacy is overrated. I once worked in a Senate office when a decision came down, the implications of which we rather disliked. But the decision was unanimous, and if you've ever read Chevron, it's not hard to see why. The agency was legally entitled to its interpretation. It was, as they say, within the strike zone. Delightful.

But when we ask Nominee Roberts about the role of judges, we could not possibly care less about this kind of case. We take those decisions for granted. No, we want to know about the dark art of Constitutional interpretation. To expand on the baseball metaphor, Constitutional law is baseball in which the umpire and the pitcher cannot see one another and may not even think they are playing the same game.

The now-standard response for judicial nominees—that the purpose of judges is to call balls and strikes—is, at best, coy and, at worst, intellectually dishonest. The former is a judge sidestepping the fact that we want to know how he or she will decide the hard cases. The latter is a judge somehow believing that there are none.

Consider the Court's recent Eighth Amendment work, especially Roper and, more recently, Baze: You could spend your life staring at the text of the Eighth Amendment and the common law it has sprouted, but you're still left with the words "cruel and unusual punishment." As some have suggested elsewhere on this page, if you can locate the shoulder- and belt-heights of that phrase, you're underthinking.

Do we examine the standards at the time of codification? (This goes to Vern's earlier thought-experiment and the limits of textualism.) Current understandings and standards? Personal standards? Local standards? National? Global? I have my answers, but I do not delude myself that they are rooted in anything other than my own politics.

I don't think the Chief Justice does either, except during confirmation hearings.

Is the vast majority of the law completely determinate? Absolutely. But when we ask your judicial philosophy, we're not curious to know what reasoning you'd apply when signing a unanimous decision, or whether you agree that speed limits present bright-line legal distinctions. We want to know how you'll interpret Constitution when you can see neither pitcher, nor ball, nor batter.

It's time to retire the "umpire" charade for high-level judges. Tell us about your first principles, your politics, your reactions to other hard cases. It's crucial to know what happens when the ball hits a pigeon because, in the world of Constitution, it's pigeons all the way down.

Any Justice who tries tells you that he or she could be replaced with a machine should well be replaced. And not with a machine.

On Baseball and Pigeons

A confession: I agree with Chief Justice Roberts. For the most part, the law is, in fact, about calling balls and strikes.

Absolutely no one agrees with me on this who isn't currently serving on the bench. Nevertheless, I believe it's true. There is almost always a right answer.

The vast majority of the law gets no attention because its results are utterly self-evident. No one speeds through red lights because he thinks the law is indeterminate. Most people just obey these laws without question. The people who disobey them almost always plead out. The few that challenge their verdicts are shut down pretty much instantly; their cases are processed without much ado, and their appeals are easily dismissed.

That's about 99.99% of the law.

After that, it gets a little trickier. There might be a good-faith argument for ambiguity in the law. Nevertheless, usually these ambiguities are fairly easy to resolve. You look at a dictionary, at the rest of the statute, at common sense, at the legislative history (maybe). There's a reason most trial court decisions are upheld, that most appeals court decisions are upheld, that most appeals court decisions are unanimous, and that most SCOTUS cases aren't decided 5-4. It isn't all laziness and congeniality--it's that, usually, there's a pretty obvious right answer.

And, yes, the higher you go up the chain, the more ambiguous the cases get--because otherwise they wouldn't have gotten up the chain. But still, most of the job of a judge is calling balls and strikes. And there are some tough calls, but that doesn't mean there isn't a strike zone.

But in 2001, in a game between the Diamondbacks and the Giants, Cy Young winner Randy Johnson threw a fastball against Calvin Murray. And three fourths of the way to home plate, it struck, and killed, a pigeon.

Of course, in baseball, you can just call for another pitch. But imagine if the umpire didn't have the option. How would he call it? He'd have to calculate the speed and spin of the ball, and look at the batter's stance, and so on. And maybe, if he were a really good umpire, he could take a pretty good guess. And then the game could go on, and no one would be able to really prove him wrong, so that would be ok. It wouldn't be a disaster, and the guess would probably be reasonably fair. But it would be a guess.

And sometimes (very, very rarely), Congress hits a pigeon.