In state courtrooms, a broken system leads too many judges to call balls for one side and strikes for another. (First in a three-part series)
Seven years ago last month, the man who would be Chief Justice of the United States, a man who had devoted his entire adult life to the study of the law, tried memorably at his cordial confirmation hearing to describe to hundreds of millions of his future litigants what a judge actually does when the gavel hammers down. "Judges and justices are servants of the law, not the other way around," John Roberts told the Senate Judiciary Committee in September 2005:
Judges are like umpires. Umpires don't make the rule; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is limited role. Nobody ever went to a ball game to see the umpire.
Despite all that he has written and done since he ascended to the United States Supreme Court, despite what he did just this past June by delivering a viable Affordable Care Act to its supporters while limiting the Commerce Clause for future cases, Chief Justice Roberts is known for that quotation. It's fair to say that it is the most famous thing this very famous man has yet said, and no matter what happens to his career or the Court from here, it's almost certainly a quote that is going to make it one day into his obituary in the New York Times. "The judge, who once likened judges to baseball umpires...." And so forth.
We now know that John Roberts has a very different perception of the nature of baseball umpiring than do many of the rest of us. So far in his tenure, with a few notable exceptions including the one above, he has called mostly balls for one team and mostly strikes for another. And ties in doctrine or statutory construction have "gone to the runner" only if you consider the runner to be corporate interests. The U.S. Chamber of Commerce, for example, was 7-0 at the Court last term before the health care ruling. It's good to be Big Business in the batter's box. It's not so easy to stand in if you are a litigant opposing a corporate interest.