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The Supreme Court and the End of the Umpire


I don’t think he realizes it, but Chief Justice John Roberts just killed the umpire.

The most immediate political implication of last week’s court rulings is to change how we see the Supreme Court. Specifically, it will lead many of us to reject as a lie the theory that Roberts spoke about, with much apparent sincerity, in the opening remarks of his Senate confirmation hearings.

Judges are like umpires. 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. Nobody ever went to a ballgame to see the umpire.

This was more than just a promise of procedural impartiality. It was a sweeping promise to be a man with no political bias.

Mr. Chairman, I come before the committee with no agenda. I have no platform. Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it’s my job to call balls and strikes and not to pitch or bat.

I think it’s fair to say that after Thursday’s ruling in King v. Burwell, that “umpire” analogy is dead. In order to save Obamacare the first time around, Robert rewrote the individual mandate as a tax. In order to save it this time around, he went a bit further, rewriting a prohibition against health-insurance subsidies in non-state-established exchanges into an authorization for those subsidies. So the law now says that opposite of what it said when originally written.

This is not the job of an impartial umpire. It is the job of a partisan.

This is not the job of an impartial umpire. It is the job of a partisan whose job is to keep the legislation alive no matter what.

A defense of the consistency of the chief justice’s position on this issue offers a revealing alternative formulation.

By construing the Affordable Care Act, twice, in ways that respect Congress’s broader purposes rather than thwarting them, Chief Justice Roberts was not, as Justice Scalia charged, rewriting the law. Instead he was advancing the view that he championed soon after his confirmation: In a polarized age, it is important for the Supreme Court to maintain its institutional legitimacy by deferring to the political branches.

But this is not the role of an impartial “umpire.” This is the role of an institution that shows “deference to the political branches.” And in this case, it’s not actually deference to Congress. It’s deference to the executive branch, to the ability of the IRS to reinterpret the law.

“Deference,” in this case, actually means subservience. This ruling makes the Supreme Court into a servant of the administration, whose job is to lend a veneer of legitimacy to whatever the administration chooses to do.

Oddly, only a day later, Roberts tried to return to the role of umpire on gay marriage, arguing that the issue should have been declared out of bounds for the Supreme Court to deal with: “This Court is not a legislature…. Under the Constitution, judges have power to say what the law is, not what it should be.” As my colleague Mollie Hemingway put it:

But while Roberts suddenly shrank back from a partisan role for the Court, five of his colleagues embraced it. After voting for lickspittle deference to the administration’s wishes on Thursday, they declared on Friday that we have all the power and overruled the decisions made by the people and legislatures of dozens of states on an issue that has always been considered to be in their jurisdiction. Now, you could argue for one of these approaches toward the role of the Court or the other. What I don’t see is how you can argue for both, and reverse your position on the power of the Court literally from one day to the next.

While Roberts suddenly shrank back from a partisan role for the Court, five of his colleagues embraced it.

The only consistent factor is that in both cases the Court got the result that was politically demanded by the left or center-left. And that seems to be the ruling factor now.

There are two basic rules that observers of the Supreme Court might have been able to form over the past few decades.

First, doubt about how the court will rule is almost always doubt about how the Republican-appointed “conservative” justices will rule. There is rarely any debate over how the four Democrat-appointed “liberals” will decide, because they consistently rule in line with partisan political requirements.

Republican appointees sometimes move left, but somehow Democratic appointees never move right.

Second, Republican appointees sometimes move left, but somehow Democratic appointees never move right. If you count Roberts, Kennedy, and the now retired David Souter, about half of the Republican appointees became very unreliable conservative votes, to say the least. That’s a defection rate of about half over the past thirty years. That strange new respect must be sweet. But where is the Democratic appointee who has suddenly discovered the virtues of limited government and property rights? It’s almost as if only one side is uniformly politically dogmatic.

Where this leaves us is that the Supreme Court is now fully, openly a political institution, driven by political imperatives (among the Democrat-appointed judges) or personal whim and idiosyncrasy joined to political cheerleading (basically, every decision written by Justice Kennedy).

What this mean is that there is no longer any such thing as a judicial “umpire.” To avoid appointing another John Roberts on the Court—presuming that the right has any such opportunity in the next presidential administration—we can no longer be taken in by the ideal of a judge as a neutral guardian of process, held back by “judicial restraint.” Instead, we will have to expect that the next Republican president appoint someone with a proven track record as a warrior for our cause. And as with just about everything that has happened over the past century, this increases the power of the presidency and the stakes for the party that captures it.

Roberts has made the Court seem like a crude rubber stamp for political passions.

So if Roberts’s goal in Burwell was to “maintain the institutional legitimacy” of the Court by removing it from politically explosive conflicts with the other branches and levels of government, he has achieved the exact opposite result. He has made the Court seem like a crude rubber stamp for political passions, and thus more crassly political than ever.

In re-reading Roberts’s statement from his confirmation hearings, there was one other passage later on, as Roberts described his experience arguing for plaintiffs before the Supreme Court, that struck me as exceptionally poignant in hindsight.

Here was the United States, the most powerful entity in the world, aligned against my client. And, yet, all I had to do was convince the court that I was right on the law and the government was wrong and all that power and might would recede in deference to the rule of law. That is a remarkable thing. It is what we mean when we say that we are a government of laws and not of men. It is that rule of law that protects the rights and liberties of all Americans.

That all seems hopeless naive now, and it was rendered so, in part, by Roberts himself. The message a younger version of himself would take from last week’s rulings is not that anyone can win on the merits of the law. The message is: “Sorry, kid, the politics are just too intense. Better luck next time.”

But Robert’s original statement was correct about one thing. Without that expectation of an objective ruling on the law, the courts are no longer in the business of defending our liberty.

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