Throughout his confirmation hearings, Chief Justice Roberts compared himself to a baseball umpire whose job was simply to objectively call balls and strikes–never to impose his own preferences on the game.  “Modesty,” “humility” and “judicial restraint” were Roberts’ buzz words; fair decisions without ideology his promise.

Of course we now know that, with John Roberts as the umpire, the strike zone has moved awful far to the right, but it is not surprising that Roberts pretended to be non-ideological and restrained when he was trying to sell himself as a future Chief Justice.  The American people like their judges to follow the law; and they no doubt would have viewed him harshly if he had confessed to being an ideological crusader.

In just over two weeks, Judge Sotomayor will have her own confirmation hearings. While it remains to be seen how she will present herself in those hearings, a report by the non-partisan Congressional Research Service confirms something that should be obvious to anyone who has examined her record.   She actually is the kind of modest, non-ideological judge that Roberts claimed to be:

Overall, Judge Sotomayor’s opinions defy easy categorization along ideological lines. . . . General characteristics of her approach to the judicial role are more easily identified. Perhaps the most consistent characteristic of Judge Sotomayor’s approach as an appellate judge could be described as an adherence to the doctrine of stare decisis, i.e., the upholding of past judicial precedents. This characteristic would be in line with the judicial philosophy of Justice Souter, who often displayed special respect for upholding past precedent. Another characteristic of Judge Sotomayor’s opinions could be described as a meticulous evaluation of the particular facts at issue in a case, which may inform whether past judicial precedents from the circuit are applicable. Her approach to statutory interpretation seems similarly nuanced. She tends to adhere to the plain meaning of the text but, in the face of ambiguous language, appears willing to consider the intent and purpose of a statute. Judge Sotomayor’s opinions also display her apparent dislike for situations in which the court oversteps the role called for by the procedural posture of a case.

Amusingly, Senator Sam Brownback (R-KS) recently announced that he would oppose Sotomayor’s nomination because “I am afraid Judge Sotomayor wants to be more of a player than an umpire.”  Maybe he’s confusing her with John Roberts.

Most of the coverage of yesterday’s Supreme Court decisions has focused on the strip search case, in which a school administrator ordered a 13 year-old girl strip searched because he suspected her of bringing ibuprofen–the same drug contained in Advil–to school.  To their credit, the Court voted 8-1 that such a strip search is unconstitutional, but the justices really don’t deserve that much praise for this decision.  Indeed, one must wonder why America even bothers to have a Constitution if it doesn’t protect young girls from such intrusions.

Moreover, while the strip search case certainly presents a compelling story, it isn’t even the most important education decision handed down the same day.  The inexcusable tale of Savana Redding’s encounter with an overzealous vice-principal will make headlines, but the impact of a little noticed case called Horne v. Flores will be felt for years to come.

Horne involves the right of English Language Learners (ELLs) to a public education which teaches them to speak English while also providing them with adequate instruction in History, Math, Science and other core areas.  Federal law requires public schools to “take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.”

In 2000, a federal court determined that Arizona violated this law by failing to provide enough resources to instruct ELLs in the town of Nogales’ school district.  According to the court, it costs $617 more per year to educate an ELL student than to teach an English speaker, but the state only provided Nogales’ ELL students with an additional $150 per year.  In 2001, the court ordered the state to “develop a funding mechanism that would bear some ‘reasonabl[e]‘ or ‘rational relatio[n] to the actual funding needed” to educate ELLs in Nogales.

Flash-forward to today, and the state school superintendant wants the order to go away.  Although four judges have told him that the order must remain in place until Nogales’ ELLs are receiving the funding they are legally entitled to, yesterday’s 5-4 decision by Justice Alito disagrees.

Essentially, says Alito, the trial court must lift the order unless it can answer a series of “what ifs?”  What if the district’s shift away from bilingual education to something close to English-only instruction somehow eliminates the need for an adequate amount of education funding?  What if the testing regime set up by No Child Left Behind magically transforms ELLs into English speakers?  What if changes to the school district’s administration, textbooks and curriculum allow ELL instruction to be done on-the-cheap?  Under Alito’s decision, a judge can be forced to answer any number of increasingly irrelevant “what ifs?” to justify an order that the law required them to issue.

The big winner in from yesterday’s decision are the dozens of local school districts, federal and state prisons, public employers and other government entities who have defied federal law and who have been ordered to stop by a federal judge.  Every one of these entities may now go back to court with their own series of improbable “what ifs?” that the judge must answer.  Proponents of the original order will need to find and pay a lawyer to defend longstanding court orders that do nothing more than require local officials to comply with the law.  It is likely that many reformers will discover that they cannot afford such legal fees, and court orders essential to preventing lawless behavior will wither and die.

The losers are ELLs in Nogales, and thousands of other Americans who count on federal laws, and who depend on court orders actually meaning something when local officials decide that they are above the law.