Aesthetic Judging and the Constitution (Or, Why Supreme Court Justices Are Less like Umpires, and More like Figure-Skating Judges)

Abstract

This essay advances the claim that Supreme Court justices, especially in constitutional cases, are better analogized to judges in aesthetic sports, such as figure skating, than to the more familiar baseball umpire. The metaphor is descriptively stronger, in that both sets of actors make considerable use of unarticulated (and often inarticulable) norms and internalized conceptual knowledge in addition to the formal rules governing their respective domains, in that it accounts for the significance of acculturation in the acquisition of those norms and that knowledge, and in that it provides an account of how a system such as constitutional law can evolve apart from (and even without) changes to the formal rules. Finally, the metaphor serves as a useful caution. Figure skating judges, after all, do not enjoy a reputation for probity. Conceiving of the justices in those terms thus invites consideration of the sorts of factors that might lead to crisis in either context, an exercise that is especially appropriate in this era of deep partisan divide.

Keywords: Supreme Court, constitution, constitutional law, constitutional theory, judges, justices, umpire

JEL Classification: K10, K30, K40