The Constitutional Strike Zone, Take Two

In a stunning display of editorial efficiency, I wrote a more sober version of my previous sarcastic post, submitted it to Slate this morning, and received a rejection within thirty-two minutes. I now set it forth forthwith.

The Constitution is Not a Strike Zone

As Supreme Court Justices travel the country ingratiating themselves to the American public, it's only natural that they would turn to baseball, to help them along the way. During a visit to Tampa Bay last week, Justice Samuel Alito -- the Court's newest member -- did just that. Not only did Alito throw out the first pitch at a Yankee-Devil Ray game, but he later gave a speech littered with baseball imagery. Of particular note was his comment on whether he believed in a "living Constitution," the notion that the Constitution evolves over time as society changes. On this subject, the freshman justice quipped: "Umpires face this very same problem. For example, do we want a living strike zone?"

In addition to carrying forward his baseball activities from the day before, Alito was echoing a sentiment previously expressed by Chief Justice John Roberts. Roberts, during his Senate confirmation hearings, famously compared the proper role of a judge to that of an umpire, stating that "Judges are like umpires. Umpires don't make the rules, they apply them." He also stated that the job of the umpire is to "call balls and strikes and not to pitch or bat."

Roberts' baseball analogy scored him major PR points and has since become a constant refrain as commentators assess his performance as Chief Justice. However, the analogy, while quaint, doesn't withstand much scrutiny. As Senator Joe Biden quickly pointed out during those same hearings, there are many instances where Supreme Court Justices, unlike umpires, "get to determine the strike zone." Biden astutely divided the role of a judge into two functions -- interpretation of the law and application of the law. Unlike the rules of baseball, which are clearly defined, the Constitution has terms like "cruel and unusual," "due process" and "unreasonable" that must be interpreted before a call can be made. Roberts' analogy glossed over the interpretative function, which has been the hallmark of the Supreme Court's role for most of its history.

The reason that Biden wasn't able to derail Roberts' baseball metaphor -- apart from the fact that the media loves a good metaphor -- is that Roberts wasn't using baseball in a doctrinal sense. Roberts' statement that a judge's job is to "call balls and strikes" had nothing to do with how those calls are made. Rather, Roberts was emphasizing, in a colloquial way, the notion that judges make decisions, not law. Biden's nitpicking about interpretation and application, while correct, was off topic.

Unfortunately, this wasn't the case with Alito's follow-up. When Alito ham-handedly tried to apply the baseball metaphor directly to constitutional interpretation, he struck out. In rejecting the notion of a living constitution by comparing it to the absurdity of a living strike zone, Alito appeared to be defending "originalism," the doctrinal adversary of the living Constitution, which states that the provisions of the Constitution should be given the meaning that would have been given to them at the time they were drafted. Here, Biden's criticism becomes significant. Alito can't use a metaphor that skips over interpretation to rationlize a theory of constitutional interpretation.

And originalism does offer its own variety of possible interpretations. For example, Justice Hugo Black, one of the Court's great liberals, was a fierce originalist, and yet today originalism is almost the exclusive province of judicial conservatives. Likewise, today's originalists have varying responses when challenged to come up with an originalist justification for Brown v. Board of Education, considering the fact that the same Congress that passed the Fourteenth Amendment also passed segregation laws. To the extent that Alito thinks the strike zone metaphor is appropriate because the Constitution, like the strike zone, is subject to only one interpretation, he's ignoring the dissonance among his own allies.

The other problem with Alito's remark, and one that takes it further away from Roberts' comment, is its underlying arrogance. Part of Roberts' charm during his confirmation hearings was his seemingly geniune humility. As the nominee for the most powerful judgeship in the country, and by all accounts the most qualified nominee for that position in quite some time, Roberts downplayed his own significance by promoting a limited role for the Court. Whatever Robert's personal agenda was, it would be muted by his overall commitment to judicial restraint. Roberts appears to be making good on his promise, fostering unanimity by deciding cases on limited grounds.

Alito, on the other hand, boldly proclaimed that his view of the Constitution is the simplest, the most logical, the most straightforward, and the most "American" by backing it up with baseball. But all Alito was really doing with this empty metaphor was supporting his own philosophy by labelling the opposition as absurd. Indeed, Alito's comment was uncomfortably reminiscent of the infamous speech in which Justice Antonin Scalia described the living Constitution idea as "idiotic." These types of attacks, in addition to being entirely unconvincing, undermine Roberts' own desire to preserve the Court's crediblity as an institution.

Of course, the biggest problem with Alito's strike zone analogy may be that it doesn't even comport with his own views. In a sense, the strike zone is a living thing. It's defined in part by the height of the batter, and is therefore different for each player. The strike zone easily adapts to each new situation and produces consistent results. This is a view of the Constitution that originalists would find appalling.