Thursday, July 1, 2010

Elena Kagan, John Roberts and the "balls and strikes" theory of the judiciary

Ben Boychuk and I discuss the role of the Supreme Court in this week's column for Scripps Howard. My take:
John Roberts' "balls and strikes" analogy is appealing, but it also has very little to do with how the Supreme Court works, or its role in American life.

The Supreme Court, after all, only takes the hard cases -- the ones where questions of Constitutional law are still unsettled. The easy questions -- the ones where the bright lines of the law make it relatively simple to determine the "right" results of cases -- are left to the lower courts.

But it's the Supreme Court's job to draw the bright lines. It must do so within the parameters of the Constitution, of course, but the job is still largely one of interpretation.

"The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another," retired Justice David Souter said in a recent commencement speech.

"Judges have to choose between the good things that the Constitution approves, and when they do, they have to choose, not on the basis of measurement, but of meaning."

Elena Kagan this week said, "it ought to be Congress and the president that do the policy-making. And the courts ought to respect and ought to defer to that." That should comfort conservatives worried about "activist judging." The Supreme Court, however, has a difficult job.

Simple analogies don't make it any simpler.


namefromthepast said...

Not all the court's cases are hard. They just re-ratified the 2nd the narrowest of margins.

Interested in your take on Kagan's exchange with the Supreme Court on 9/9/09 concerning the banning of books.

What about her response to Colburn? A law telling people what to eat is dumb but not unconstitutional?

Where does this activist think the constitutional line is drawn?

What if the question had been what to wear, what to say, where to live, what job to have, how many kids to have, what to write, what car to drive?

I thinks she's all strikes and no balls.

Anonymous said...

Actually, they ratified the second half of the second amendment, and deleted the first half. You may vaguely remember it: "A well regulated militia, being necessary to the security of a free state...."
Apparently the founding fathers didn't really mean that. At least not according to "umpires" like John Roberts.