2020 Wisconsin Law Review 411-438
28 Pages Posted: 24 Jun 2020
Date Written: June 14, 2020
Judges, from the Chief Justice of the United States on down, insist on being viewed as impartial officiants, not combatants, in legal disputes implicating everything from war powers to riparian rights. It is thus not surprising that they, and influential circles of lawyers and policymakers, draw analogies between judges and umpires or between judges and managers.
Over time, these characterizations have come under close scrutiny. Critics see umpire judging and managerial judging as descriptively inaccurate, normatively impoverished, or both. But, assuming the critics are right, what’s the alternative? Is there a role for judges — call them Baller Judges — who see themselves as contestants, competitors, and intellectual partisans in the collective project of constitutional governance?
This Essay considers the prerogatives and responsibilities of such Baller Judges, how they fit alongside Manager and Umpire Judges, and how they challenge and possibly enrich our larger constitutional ecosystem.
Keywords: Constitutional Adjudication, Supreme Court, Judges As Umpires, Original-ism, Departmental-ism, Dissents, Jurisprudence, Senate Confirmation, Judicial Politics, Chief Justice
JEL Classification: K10, K20, K30, K40
Suggested Citation: Suggested Citation