The Next Supreme Court Justice


Soon we will learn the President’s nominee for the Supreme Court. And then the political theater will begin. The assumption is a Republican President nominates a conservative; a Democrat nominates a liberal.

Justice Roberts got it right in his nomination process, making his point in terms all of us could understand, when he said he would call “a ball a ball, and a strike a strike.”

Roberts was saying that, as a judge, it is his role to interpret the law and decide controversies. His personal views do not enter that process. If the rule says a pitch in the strike zone is a strike, then when he sees a pitch in the strike zone, he calls it a strike, even if he favors the team at bat. And he doesn’t create the rule of what makes a strike – the legislature does. He just interprets that rule and applies it to resolve a controversy.

Some of the senators questioning him did not seem to accept this was his role, and seemed instead to think his role was like theirs – to represent and advocate for a particular world view – and they sought to learn his world view, certain he would then, as a justice, advocate for that view.

No. We have three branches for a reason. The legislative branch creates the law, the executive enforces the law, and the judicial interprets the law.

If we honored this American system, the only relevant questions to a nominee (after addressing ability, stability, and trust) would be about her approach to interpreting the law.

Unfortunately, it appears we expect our presidents to nominate justices who will act as legislators, sitting as a third chamber of Congress, composed of nine people, promoting a certain world view. And so Democrats don’t want a republican president to have the opportunity to nominate someone to the Supreme Court, and Republicans feel the same way about a democratic president.

But the Supreme Court is not the legislature – it’s part of the judicial branch.

Whomever is nominated, I hope she is someone who calls a ball a ball and a strike a strike.


3 Replies to “The Next Supreme Court Justice”

  1. Justice Roberts oversimplified the process in his “calling bells and strikes comment.” That is only true once you know you’re playing baseball and the strike zone has been defined. In an issue of first impression, there is no rule. Judges make up a rule by analogy but that process necessarily involves the judge’s assessment of the policy and her view or at least her judicial philosophy. The same goes for construing broad language in constitutions. What does “unreasonable” mean? Are we supposed to guess what the drafters meant? And if so, what if 18th century sensibilities don’t make sense in the 21st century? And what of the common law, which is judge made? Judges have been making the law in our common law system for centuries. Whoever is nominated will pretend otherwise and engage in the kabuki theater that is our current process. But we ought to know how a judge will approach these questions when making decisions (and the law) as we will have to live with the results for decades.


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