High and Outside

Uncertain Justice: The Roberts Court and the ConstitutionBy Laurence Tribe and Joshua MatzHenry Holt, 2014The Roberts Court began with a metaphor.  In his 2005 Senate confirmation hearing, Chief Justice John Roberts equated the proper role of a Supreme Court justice to that of a baseball umpire: "I will remember that it's my job to call balls and strikes and not to pitch or bat."Roberts’ turn of phrase has been maligned as uncompassionate by the left (per Diane Feinstein, “I do not believe that Supreme Court justices are merely umpires calling balls and strikes.  Rather I believe that they make the decisions of individuals who bring to the court their own experiences and philosophies.”), oversimple by the right  (per Reagan DOJ official Bruce Fein, “the umpire metaphor of the task of a Supreme Court Justice is juvenile”), and hypocritical by the fourth estate (Jeffrey Toobin of the New Yorker contrasted Roberts’ allusion with his perceived lack of “modesty and humility”).  But the comparison stuck. Fellow Justices have not escaped the phrasing’s pull.  At Justice Sonia Sotomayor’s confirmation hearing four years later, the phrase “balls and strikes” was used eleven times, and “umpire” sixteen.  At Justice Elena Kagan’s hearing, she went out of her way to reject it.What’s interesting, though, is that the Chief Justice’s analogy is more nuanced and apt than its folksiness would suggest. Consider the strike zone.  Since the beginning of Major League Baseball, the very definition of “Strike Zone” has been amended no fewer than thirteen times.  One early attempt to codify the definition is straightforward enough:

1969 - "The Strike Zone is that space over home plate which is between the batter's armpits and the top of his knees when he assumes a natural stance. The umpire shall determine the Strike Zone according to the batter's usual stance when he swings at a pitch."

That definition seems workable, but was apparently doomed by the ambiguity of the terms “natural stance” and “usual stance.”  Nineteen years later, Major League Baseball sought to clarify:

1988 - "The Strike Zone is that area over home plate the upper limit of which is a horizontal line at the midpoint between the top of the shoulders and the top of the uniform pants, and the lower level is a line at the top of the knees. The Strike Zone shall be determined from the batter's stance as the batter is prepared to swing at a pitched ball."

In the most recent update, MLB added:

1996 - The Strike Zone is expanded on the lower end, moving from the top of the knees to the bottom of the knees.

Indeed, the strike zone’s evolution has taken a path that would be more familiar to a beleaguered law student than to the most obsessive baseball fan. First, perceived ambiguity in a straightforward rule led to the imposition of an imaginary horizontal line, arbitrary referents to uniform pants, and a subjective inquiry as to whether a batter is “prepared to swing.” Next, MLB chose to expand the strike zone, in an effort to provide pitching with a greater advantage and keep scoring down. It is only within this highly artificial system that an umpire is able to make a seemingly objective call that a ball at the lower knee is a strike.Now consider the role of the umpire in enforcing the strike zone.  Any umpire would relate to the statement by former Justice Robert Jackson:  “We are not final because we are infallible, but we are infallible because we are final.”  In other words, no pitch has inherent qualities of a ball or strike, or issue has the inherent quality of being legal or extra-legal.  Only the determination makes it so.

***Uncertain Justice, by Harvard Law School professor Laurence Tribe and his former student, Joshua Matz, deals with the Roberts Court on its own terms.  Unlike those who choose to argue balls and strikes (an automatic ejection per the 2010 amendment to MLB Rule 9.02), the authors attempt to track and trace the evolving contours of the Roberts Court strike zone.The book addresses nine prominent Constitutional issues, each one introduced by a too-cute chapter subtitle.  Some, like the chapters on equality (“Are We There Yet?”), health care (“Liberty on the Line”), and gun rights (“Armed and Dangerous”) address issues visible to the citizenry. Others, such as Privacy (“What Have You Got to Hide?”) and Presidential Power (“Hail to the Chief”), search deeper.   In outlining the Court’s judicial philosophy, the authors admirably demur from defining the Court under any broad, unifying theme.  The book swiftly and convincingly rejects the terms “activism” and “judicial restraint” (“all justices are ‘activists’ in certain areas of constitutional law”), and refuses to “point to a strong left/right split, a partisan realignment, or a dispute over legal method and then argue the life of the Court really boils down to that story.”The book’s thesis is this: “Blessed with tremendous power, cursed with great responsibility, and fated to serve in a cynical age, the justices of the Roberts Court know well that the power to persuade is among their mightiest weapons.” But this persuasive power is not just exercised in the backrooms as a case is decided. It must be wielded subtly and slowly over time. Indeed, with a few anomalous, and perhaps apocryphal, exceptions (Roberts changing his mind about Obamacare at the eleventh hour, Justice Sandra Day O’Connor swinging eleventh hour deals to cobble together a majority in Planned Parenthood v. Casey), cases are over before the advocates’ pens first touch paper. By the time a case reaches the Court, the mechanics behind its ultimate ruling have been set in motion during years of skilled maneuvering in the opinions and dissents of prior cases.In other words, the nine Justices (with their lifetime appointments) are playing nine individual long games. Accordingly, the book takes a longer, slower look at the animating principles behind the Justices’ approaches, examining how their sometimes-conflicting personalities and ideologies on particular issues interact.   It is the book’s biggest accomplishment to find the intersections between the personal and the legal, the processes and the rulings. In valuing this depth over legal just-so stories, the book is able to find a few consistent threads in the Court’s jurisprudence—spotting, for example, Roberts’ quest to move toward closer scrutiny of economic regulation, “with an eye toward protecting a wide range of related individual rights,” and his simplistic approach toward free speech issues, with little appetite for balancing competing values.***Uncertain Justice is at its best when it closely explains the way a particular Justice can maneuver to effect change on a particular issue. A representative example is when the authors take a deep dive into the mind and methods of the Court’s perhaps most misunderstood Justice, Sonia Sotomayor.  After her nomination, Sotomayor was both praised and derided for occasionally wondering aloud whether her personal experiences might lead her to better adjudicate the issues of the day than a member of other classes of people: “I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion . . . "  To this, she sometimes added, "than a white male who hasn't lived that life."  As with “balls and strikes,” “wise Latina” was controversial, but proves to be more complex than it was given credit. Despite the volumes of laws and interpretations, the outcome of any particular case, as likely as not, will turn on the question: Was the behavior reasonable under the circumstances? To the chagrin of many, doubtlessly including Justice Sotomayor, this test is also known as the “reasonable man” standard, and across many areas of law, decisions turn on it. In this context, her comment seems more realistic than provocative.Indeed, in the days after Sotomayor’s nomination, it was impossible to skim the news without seeing some combination of the words “realistic,” “plainspoken,” “common approach,” and so on.  To many observers, these descriptions seemed to be politics at best, and coded racism at worst.  But the authors are able to take Sotomayor’s abstract philosophy and show how she was able to nudge the Court into a greater appreciation of realism:

Serving as a prosecutor in the New York County District Attorney’s Office . . . [s]he observed firsthand the devastating impact of a murder on a victim’s surviving spouse, the depravity of those who trade in child pornography, and the pressure to bring cases to trial even with flimsy evidence. As a prosecutor on the front lines, she saw the criminal justice system in all its splendor and all its tragedy. . . . Sotomayor mixes noble ideals with a strong dose of realism, a practical bent, and a firm commitment to justice, all of which have served her well on the Court.

In particular, the book tracks how Sotomayor was able to introduce and then impose her realistic approach in a string of cases relating to the rights of the criminally accused. Sotomayor was alone in her dissent in United States v. Jones, which concerned warrantless GPS tracking, and in Perry v. New Hampshire, concerning the reliability of eyewitness statements.  In both of these cases she used her experience as a prosecutor to argue that methods that seem reasonable in theory are often unreliable in practice and serve to prejudice the case against a defendant without adding much probity. And joined by only Justice Stephen Breyer, she futilely tried to exercise the Court’s jurisdiction in a case where an elected Alabama judge overruled a jury and decided to execute a convicted defendant. The seven other Justices declined to hear the case. At the time these would have seemed like minor cases—losses and reprimands for an idealistic neophyte.This trajectory ends with a discussion of Lafler v. Cooper, a case about whether a criminal defendant can seek a new trial on the grounds of ineffective assistance of counsel, when an attorney gives bad advice regarding whether to accept a particular plea deal.  Justice Antonin Scalia argued, plausibly, that it was senseless to afford a defendant more protection than what is already provided by the “24-karat test of fairness,” the criminal trial. He derided the “sporting-chance theory of criminal law, in which the State functions like a conscientious casino-operator, giving each player a fair chance to beat the house, that is, to serve less time than the law says he deserves.”  Recognizing the reality that an overwhelming majority of criminal cases never go to trial, Sotomayor pushed back hard in favor of the defendant at oral argument. Her view prevailed, as the majority recognized that “the reality that criminal justice today is for the most part a system of pleas, not a system of trials.”  It added that “[t]he right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining plays in securing convictions and determining sentences.”This reference to the “reality” of the criminal justice system was seemingly unprecedented: Sotomayor’s commonsense approach has become law and criminal defendants are now afforded a set of wide protections previously unavailable to them.  What’s more remarkable is that the majority opinion was penned not by Sotomayor herself, but by frequent swing-voter Anthony Kennedy.  She had prevailed by persuading a single other Justice, slow and steady.Through such cogent, digestible analysis, the authors illuminate each Justice’s judicial approach, show how it is applied to decisions over time, follow its effect on the Court’s jurisprudence, and finally explain its real-world consequences. The authors also manage to enliven subjects that would not seem likely to interest anybody but lawyers and law students, finding unexpected drama in such esoterica as Scalia’s crusade to scale back the power of the Commerce Clause, Kagan’s interest in using the First Amendment to curb political corruption, and Samuel Alito’s distinction between personal and informational privacies.  The explanations of personal philosophy are immensely helpful to anyone hoping to understand the latest batch of Court decisions, allowing for them to be viewed with greater depth and context. For example, the much-debated Hobby Lobby decision was widely portrayed as a socially conservative decision that broke from the Court’s earlier endorsement of the Affordable Care Act’s constitutionality. But Tribe and Matz demonstrate that it’s the result of several connecting threads: the continuation of Scalia’s mission to rein in the Commerce Clause, an affirmation of Clarence Thomas’ goal of promoting individual freedom through economic deregulation, and a fulfillment of Roberts’ tacit promise to economic conservatives made in his narrowly-drawn opinion upholding the constitutionality of Obamacare.

***While the book is at its best when it shows the way Justices are able to influence the Court with their individual long games, it sometimes overstretches to find division among like-minded justices to support its titular belief that with this court, Justice is Uncertain. In so doing, the authors miss opportunities to explore what animates the steady alliances that ultimately determine the major issues of the day.  Particularly unconvincing is the authors’ attempt to prove that despite critics’ suggestion that Alito is a mere Scalia clone, “Alito is a different kind of conservative” than is comprehended by Scalia’s originalism.  Alito’s brand of conservatism, we are told, is “protective of traditional values, sensitive to community-based norms, and skeptical of grand statements of principle that hover far above real-world implications.”  This philosophy (which is hardly “different” from textbook definitions of conservatism) is dutifully traced back to Alito’s all-American upbringing and baseball fandom, as well as his adherence to “a school of thought associated with Edmund Burke.”  As proof of a supposed rift, the book notes that the two were on opposite sides of Brown v. Entertainment Merchants Association, in which the Court struck down a California law that restricted the sale of violent video games to minors.Nothing is wrong with this analysis: it is interesting to learn about the ways in which Edmund Burke’s philosophy occasionally conflicts with Scalia’s reading of the history of First Amendment jurisprudence. But this type of analysis misses the forest for the trees.  Though the Justices doubtlessly have their pet issues and philosophies, the fact is that Scalia and Alito vote together 91% of the time. The supposed uncertainty existing between the two on the First Amendment is so narrow that it would likely only be implicated to the extent there is another similar case on speech protections for violent video games. In dwelling on such minute personal distinctions, the reader may lose sight of the fact that the court often votes in a very staid and consistent manner.Indeed, the authors’ insistence on reducing every decision to divisions between nine free agents leads them to rely on the personal caricatures that they so creditably seek to reject.  Near the book’s conclusion, the authors state:

Breyer celebrates pragmatic rulings that make democracy work.  The former prosecutors, Alito and Sotomayor, share deep interests in privacy and criminal justice. . . .  Scalia advances pointed views on nearly every subject, from speech to abortion to gun rights. Ginsburg carries the banner for women’s rights and exults in the mysteries of civil procedure, while Thomas recasts whole fields of law in originalist terms.  Kennedy works hard to safeguard a particular vision of human liberty, and Roberts sets forth bold statements of principle in cases about racial equality.  Kagan remains something of a question mark, though her plainspoken opinions reveal a strong commonsensical streak.

Undoubtedly, the authors amass an impressive amount of raw material in terms of what each Justice brings to each issue. In some cases, as with Sotomayor’s win in Lafler, this approach is quite illuminating.  But the authors don’t always follow through to construct theories on the alliances and trends that so often shape American law.  I would have appreciated much more discussion about how the Court gets to five votes on important decisions instead of so much diffuse discussion of the styles and backgrounds that bring each justice to their discrete beliefs.Uncertain Justice is worth reading for the greater understanding it yields about the men and women wearing the robes and its edifying commentary on the ways these Justices are able to influence each other over their careers, tweaking the course of constitutional jurisprudence in the process.  Still, it’s hard not to think that the authors’ considerable efforts were misapplied.  Tribe and Matz have created convincing portraits of nine umpires. But in the Court, unlike on the diamond, the person behind home plate does not rotate from game to game.  And while the authors give a precise sense of nine discrete strike zones, they’re ultimately unable to explain why or whether a certain pitch will be a ball or strike under the Court’s strike zone.____David Culberg is an attorney practicing in Chicago.