Umpires at Bat: On Integration and Legitimation

Abstract

During his confirmation hearings. Chief Justice Roberts captured the public's imagination when he offered an interpretation of the role that judges play in our society when interpreting the Constitution. Judges and Justices are servants of the law, not the other way around, he said. 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 ball game to see an umpire.

In this inquiry, I identify some tensions between the understanding of the judicial role animating the umpire analogy and the actual practice of constitutional adjudication in the race conscious student assignment cases recently decided by the Supreme Court of the United States. I argue that those cases vividly illustrate how inapt the umpire analogy is if one takes its appeal to formalism seriously as a statement about how judges can or should execute their responsibilities in constitutional cases.

The umpire analogy would have judges just decide constitutional cases according to the rules. Judges, however, cannot just decide constitutional cases according to the rules because they cannot agree on what the rules are in the vast majority of the most important cases. Judges cannot agree on what the rules are in such cases because a critical purpose of constitutional rules is to express a social vision, and many social visions in contemporary American society are deeply contested. Instead of pursuing the impossible task of simply applying the rules, the judiciary does its job and sustains its institutional legitimacy over the long run in significant part by articulating a vision of social order that resonates with fundamental public values. The school cases exemplify a social practice in which judges make contested appeals to popular ideals in fashioning - not merely applying - the rules that constitute contemporary constitutional law.

In Part I, I examine the virtues and vulnerabilities of the umpire analogy. In Part II, I identify pertinent parts of the judicial opinions on voluntary integration plans. In Part III, I explore what those opinions elucidate - and what the umpire analogy occludes - about the preconditions of law's public legitimation and the purposes of the institution of law, particularly in the area of constitutional law.