During his confirmation hearing Chief Justice Roberts famously promised to be nothing more than an “umpire,” limiting his role to “call[ing] balls and strikes.” During her confirmation hearing today, Supreme Court nominee Elena Kagan took issue with this infamous metaphor. While making clear that a judge cannot be like an umpire who says “every call should go to the Phillies,” Kagan criticized Roberts for pretending that judges are nothing more than robots:
The metaphor might suggest to some people that law is a kind of robotic enterprise. That there’s a kind of automatic quality to it. That it’s easy. That we just sort of stand there, and we go “ball” and “strike” and everything is clear cut, and there’s no judgment in the process. And I do think that that’s not right, and that it’s especially not right at the Supreme Court level, where the hardest cases go.
Regardless of the value of Roberts’ metaphor, the Chief Justice has spent his entire time on the Supreme Court pushing the strike zone to the right.
– Exemplified — but not limited to — the Court’s egregious decision in Citizens United, Roberts has endorsed corporations’ power to force their consumers and workers into a secret, privatized court systems that overwhelming favors corporate interests.
– Roberts has consistently sided against the earth in environmental decisions — even endorsing a company’s plan to destroy nearly all life in a pristine lake by dumping millions of tons of mercury and lead-laden mining waste into it.
– Roberts has cheerfully tossed out precedents preventing price fixing, protecting women’s health and permitting public school desegregation (yes, Roberts actually wrote an opinion saying that it is unconstitutional to desegregate public schools).
Roberts clearly exercised his personal judgment in these cases, even if that judgment did contradict the clear mandate of the law, precedent and the Constitution.
For her part, General Kagan has promised to display an “admiration for the democratic process” and to “respect the choices made by the American people.” In the same exchange where she criticized Roberts’ umpire metaphor, she states that judges must acknowledge that “the people who make the fundamental decisions for this country are the people and their elected representatives — whether in Congress or the executive branch.” Hopefully, she won’t follow in John Roberts’ footsteps and forget these promises the minute she joins the Supreme Court.