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September 13, 2005
The Umpire Strikes Back
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Jed Shugerman teaches legal history and politics at Harvard Law School. |
In a recent post, Lazarus derided the umpire metaphor. It's worth noting that one of the most influential constitutional theories of the 20th century envisioned justices in this role. The question: How can judicial review by judges appointed for life be consistent with democracy? How can judges overrule the democratic will of the people?
The late John Hart Ely offered an answer that transcended left vs. right: The Supreme Court's role is to intervene to promote democracy. Majorities sometimes abuse their power to block the democratic participation of other groups. Though I don't recall him offering this particular metaphor, the Supreme Court is like a referee or an umpire in enforcing the rules of the game to make sure everyone plays fairly.
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Ely used this theory to defend the Court's pursuit of desegregation. Jim Crow had marginalized African Americans, and Brown v. Board of Education sought to empower them politically. The defense of political speech and voting rights are easy cases for Ely, and one might use his theory to justify some gay rights cases, such as the striking down of sodomy laws in Lawrence v. Texas.
But the question remains: Will Roberts actually be such an umpire? Roberts' assistance of a gay rights group in Romer v. Evans was a classic case of protecting the democratic process for a minority group. But Roberts wanted to water down the Voting Rights Act in the 1980s, he opposed various measures for racial integration, and he is generally dismissive (to put it mildly) of discrimination claims. But as a judge, Roberts was sometimes more than an Ely-style umpire, as he voted to restrict Congress's power to protect the environment. What was the breakdown in democracy there? The Democrats would be wise to use Roberts' own umpire standard to frame their questions and challenge Roberts on a dubious civil rights record.
Posted at September 13, 2005 06:48 AM