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McKay Cunningham: The newest umpire

John Roberts was mesmerizing. His confirmation hearing to be the next chief justice before the Senate Judiciary Committee lasted two days, during which Roberts seemed strangely at ease.

The senators rattled off a maze of unordered questions, ping-ponging from abortion to eminent domain. With the slightest hint of a smile, Roberts evenly recited in granular detail the legal precedent responsive to each question. He scarcely glanced at his notes, instead choosing to lock eyes with his senatorial inquisitors.

Not all were impressed, however. Roberts repeatedly refused to answer several questions, insisting that it was improper to pre-judge a legal issue that he might be asked to consider as a judge. Pressed further, Roberts said that if confirmed he would be an umpire, nothing more. His singular role was to call balls and strikes, not to comment on what the rules of the game should be.

This, of course, is a popular analogy. Roberts was not the first to make the umpire illustration, and he wasn’t the last. Justice Alito self-identified as an umpire, and if I was in Vegas during his hearings, I’d bet that Brett Kavanaugh will too.

As Kavanaugh’s confirmation nears, the umpire premise invites closer scrutiny. Are Supreme Court Justices really just umpires, dispassionately calling balls and strikes in an unbiased quest toward a legally objective truth? It’s a tempting proposition. Most would agree that judges should be evenhanded, objective and devoid of personal bias. Most expect judges to be devoted to the rule of law and to follow it regardless of their personal disagreement with the law or the outcome it requires.

But the analogy is misleading. The law itself is often unclear. In places, it is contradictory. It is often vague. What, precisely, does “equal protection” or “due process” mean?

Perhaps more importantly, the Supreme Court by interpreting the law has also created it. Whether it is the constitutional right to interracial marriage, abortion, gun possession or gay marriage, the Court has handed down opinions that establish new legal rights and obligations.

In Obergefell v. Hodges (2015), the Court relied on two open-ended provisions in the Constitution to create a fundamental right to marry for same-sex couples. It held that the phrases “due process” and “equal protection” required protection of gay marriage.

To be clear, I am making no value judgment about gay marriage. I am only noting that the Court’s use of “due process” and “equal protection” to identify new legal rights is not the same as calling balls and strikes. Justices (conservative and liberal) have made groundbreaking decisions with widespread ramifications in the past and will likely do so in the future.

In fact, one constitutional law scholar asserts that Supreme Court justices succeed “not by pursuing the impossible task of simply applying ‘the rules,’ but by articulating a vision of social order that resonates with fundamental public values.” Whether this is the proper role of the Court is certainly debatable, but make no mistake, Brett Kavanaugh is no umpire.

As a result, the public and the senators questioning Kavanaugh are entitled to push past the umpire roadblock. His life experiences and his value judgments are likely to affect us all.

McKay Cunningham is an associate professor of law at Concordia University School of Law in Boise, where he teaches constitutional law and tort law. His research interests and publications include constitutional law, international law, and data privacy and security.


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