The analogy of judges to umpires is intuitive. Just as the umpire makes the decision when a dispute arises between members of two teams, be it baseball, football, basketball or any other ball, the judge makes the calls in the courtroom between the two litigants, be they civil plaintiff and defendant or criminal litigants represented by prosecutor and criminal defense lawyer.
“Judges are umpires,” then-Judge John Roberts said in his remarks at his confirmation hearing for the Supreme Court. “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.”
This umpire metaphor is sometimes a suggestion of judicial restraint, that judges should be arbiters alone, not to set aside precedent or create new law, but only to decide cases on the basis of established law. At Judge Roberts’ confirmation hearing, Alabama Republican Senator Jeff Sessions stated, “What we must have – what our legal system demands – is a fair and unbiased umpire, one who calls the game according to the existing rules and does so competently and honestly every day.”
Can a judge be using judicial restraint when he discards precedent rather than judicial activism? Maybe. Take the 1954 Supreme Court decision in Brown v. Board of Education as an example. This is the decision that ended the “separate but equal” segregated school system in the United States. Brown set aside the Plessy v. Ferguson decision from 1896. Yet, according to now-Chief Justice John Roberts, who acknowledged Brown was groundbreaking, but it did not change “the strike zone” because the Supreme Court relied in Brown on a later precedent, a 1950 case in which the University of Texas Law School. In that 1950 case, the Court decided that separate-but-equal was an unattainable standard in state-supported higher education. Therefore, Judge Roberts said at his confirmation hearing, Brown was not a departure from established law so much as return to it.
“We all bring our life experiences to the bench,” Judge Roberts said. Supreme Court justices are “supposed to be doing their best” to interpret the Constitution not according to their own preferences but by the role of law, he said. “That is the ideal.”
“Activism is when a judge allows his personal views on a policy issue to infect his judgment, “Senator Sessions said at the same hearing. Life experiences brought to the bench and allowing personal views on a policy issue to infect judgment. These sound pretty close.
This inquiry will not be revived at the confirmation hearing of Appeals Court Judge Sonia Sotomayor as Supreme Court Justice. “She certainly has a distinguished career,” Texas Republican Senator John Cornyn, and former Texas Supreme Court justice, said. “The real question is who she views her role as judge: whether it is to advance causes or groups or whether it is to calls ball and strikes.” The umpire metaphor.
Are judges like umpires? There are differences. “Umpires are eyewitnesses,” major league umpire Jim Evans noted. He umpired from 1972 to 1999 and now runs a school for umpires in Florida. “As the umpire you are the eyewitness and the judge. You make your decision based on your own reportage.”
But in a recent case, the Justices of the Supreme Court were eyewitnesses of sorts. In the 2007 case of Scott v. Harris, the justices considered the case of a motorist named Victor Harris, who was fleeing from the police and was rendered quadriplegic after a police car rammed him to end the chase. After viewing a videotape of the incident, the justices decided by a vote of 8-1 that Harris was not entitled to sue for civil rights violation on the basis of unreasonable search and seizure. “No reasonable jury” could fail to see the risk Harris posed to the public, Justice Scalia wrote for the majority. Confidently, the majority posted the videotape on its web site as substantiation for what it considered the inevitable opinion from viewing the video.
But it was not so obvious to other observers. A study by Kahan, Hoffman and Braman published in the Harvard Law Review showed it was a very mixed bag. The study presented this video tape to 1,350 people, who were broken down into groups by race, income, Northeastern, Southern, and Western parts of the country, political liberals and conservatives, Republicans and Democrats. The different groups varied widely in their perception of the video tape. Maybe the umpire’s call is not so easy, even for the Supreme Court.