Topic: The Judge and Umpire Analogy Questioned
Senator: Kohl
Date: SEPTEMBER 13, 2005
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SPECTER: Senator Kohl?
KOHL: Thank you, Mr. Chairman.
Judge Roberts, yesterday you described your role as a judge as just an umpire, as you called it, calling balls and strikes. And that's an interesting analogy for me, as I have, more than most, some personal experience with umpires and referees.
KYL: But as all of us with any involvement in sports knows, no two umpires or no two referees have the same strike zone or call the same kind of a basketball game. And ballplayers and basketball players understand that depending upon who the umpire is and who the referee is, the game can be called entirely differently.
When we look at real legal cases, I wonder whether or not your analogy works. For example, in our private conversation, I asked you whether the words of the Constitution must always be interpreted in the same way as the authors originally intended.
For example, the Fourteenth Amendment which guarantees equal protection under the laws to all citizens, was written at a time when schools were in fact segregated based on race.
And yet, in Brown v. Board of Education, the equal protection clause was interpreted to find segregated schools unconstitutional. And you, of course, have endorsed that decision.
No one disagrees with that conclusion today, but would a neutral umpire, as you described yourself yesterday, have decided back in 1954 to expand the words of the Constitution outside of the strike zone? Would a neutral umpire have overturned a 58-year-old Supreme Court precedent and gone against the understanding of the authors of the Fourteenth Amendment and also the views of almost half of the state legislatures at that time in making the decision that they made?
ROBERTS: Well, Senator, I think the answer to your question is yes. The research into the original understanding of the drafters of the Fourteenth Amendment has expanded and changed quite a bit. And I think a very good case can be made about their views.
But more importantly, the issue was the institution of public education wasn't as established at the time as it was in 1954 at the time of the crafting of the amendment.
And the framers spoke in broad language. And whether they specifically addressed the question of public education or not isn't the limitation. Their intent was not limited to the particular problem.
ROBERTS: They chose broad language and they should be held to their word. And I think it is perfectly consistent with an original understanding to argue and to conclude that their original understanding meant that segregated schools were unconstitutional -- not just in 1954, but at the time they enacted the amendment.
I think a strong case can be made there. And what was interesting about the Brown case -- maybe it's my own perspective -- but if you look at the arguments in that case, yes, John W. Davis arguing for the Board was arguing on the basis of precedent in Plessy v. Ferguson, saying this is the established law, but so is Thurgood Marshall.
He went in and he was arguing on the basis of more recent precedent, Sweatt v. Painter, a more recent decision of the court about law school, separate but equal. And he was saying: You need to build on that more recent precedent in addressing this case.
So the court was not changing the strike zone. That wasn't the way Marshall presented his argument. And it wasn't necessary for them to say, "We're changing the rules of the game."
What was necessary for them to do -- and what Marshall was urging them to do -- was to get it right when they had gotten it wrong in Plessy.
KOHL: Judge, back in 1954, clearly the Supreme Court justices were willing to step outside the box, to break new ground, to do something that no one, no court, no legislature, no president had done before and strike out in an entirely new and positive direction for this country.
They were not umpires simply calling balls and strikes. They were breaking new ground. And they did so in the best interests of our country, didn't they?
ROBERTS: Of course it was a dramatic shift. And the overruling of Plessy v. Ferguson was exactly that.
ROBERTS: My point is simply that, if you look at the Brown decision, it is more consistent with the Fourteenth Amendment and the original understanding of the Fourteenth Amendment than Plessy v. Ferguson. And it's based on the conclusion that the separation of the races in the schools was itself a violation of equal protection. In other words, it's not a departure from the Fourteenth Amendment, it was a departure from...
KOHL: But it was groundbreaking.
ROBERTS: Certainly.
KOHL: One more observation, Judge, about your analogy of the judge as an umpire, neutral umpire. You're 50 years old, you bring great life experience to the bench, Judge, and don't you and all judges bring their own life experiences, their philosophies to the bench in deciding cases. Or would you have us believe -- and if not you can correct that -- that judges merely operate as automatons?
ROBERTS: Not automatons, no, Senator. I appreciate that, that judges don't. And of course we all bring our life experiences to the bench.
But I will say this, that the ideal in the American justice system is epitomized by the fact that judges, justices do wear the black robes, and that is meant to symbolize the fact that they're not individuals promoting their own particular views, but they are supposed to be doing their best to interpret the law, to interpret the Constitution according to the rule of law, not their own preferences, not their own personal beliefs. That's the ideal.
KOHL: And isn't it also true that to a large extent the greatest men in our history -- judicial, executive, legislative -- have been men and women with both great minds and great hearts?
ROBERTS: Absolutely.
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