Neutral Arbiter
Judge Amy Coney Barrett claims to have no preconceived decisions about the cases she might hear in the Supreme Court. She says she doesn’t have an “agenda” when it comes to healthcare, women’s and voting rights, gun control or the power of corporations in the United States. And yet, Democrats are continually claiming that she will find against the Affordable Care Act, overrule Roe v Wade, allow for voter suppression, and protect gun and corporate interests.
We also know that President Trump has made it clear he won’t appoint a Justice to the Supreme Court that supports the Roe v Wade decision, the Affordable Care Act, or would rule for those other things. So who is right: the Democrats, the President, or the Judge? And if the Democrats and the President are correct, then is the Judge, an acknowledged legal “super-star,” lying to America?
Well, kind of. The Judge states, over and over again, that she will be fair arbiter of the law, and determine each case as it is presented to her. She repeats Chief Justice John Robert’s famous qoute. Barrett says she will be an umpire not a player, just calling “balls and strikes”. She won’t make what she considers “policy decisions”, just arbitrate what “the law” means.
The Strike Zone
I’m not a baseball “guy”. I coached other sports: Track, Cross Country and Wrestling during my teaching career. But rather than make my more familiar (to me) pole-vaulting analogies, let me use one that most Americans understand. In baseball, the pitcher has to throw to the batter, and give the batter an opportunity to hit the ball. If the ball goes through the “strike zone” and the batter fails to swing at it, or misses the ball, then the batter receives a “strike”. Three strikes, and the batter loses his turn at bat, and is called “out”. If, on the other hand, the pitcher either fails to put the ball “over the plate” or throws the ball too high or too low, then it is out of the strike zone, and the batter receives a “ball”. Four balls and the batter is allowed to advance to first base.
The umpire’s job is to be the neutral arbiter of whether the pitch was in the strike zone or not. Whether it’s a fastball, a slider, a curve or a change-up, it is the umpire’s role to call “strike” or “ball”. And we all have a common knowledge where the strike zone is. It goes from above the batter’s knees to below his shoulders. To quote that outstanding source of American sports rules, Wikipedia: “The strike zone is defined as the volume of space above home plate and between the batter’s knees and the midpoint of their torso”.
The Pitch
But baseball aficionados tell us, that different umpires have different perceptions of where that volume of space really is. It might, for a particular umpire, start at the batter’s waist and go to his shoulders. Other umpires see the bottom of the knees as the line, or the middle of the shoulders. So while the umpire is the “neutral arbiter;” how that umpire defines the strike zone will effect every pitch in the game. And since every pitcher and hitter are different, then each game will be shaped in part by the umpire’s both perceived and actual vision.
It doesn’t mean that the umpire is “taking sides”. He simply would say, “I calls ‘em as I sees ‘em”. And that’s what Judge Amy Coney Barrett will do.
Judicial Interpretation
In Constitutional Law there are those who call themselves “originalists” or “textualists”. These judges see the written words of the Constitution by their plain meaning to the original men who wrote them. The “text” is written with the “intent” of James Madison and the Constitutional Convention. Judge Barrett sees the law through this Constitutional “lens”.
There are also those judges who see the words of the Constitution in their plain meaning, but through the realities of today’s world. The universe of the Constitution’s authors didn’t include gender or racial equity, or automatic weapons. These judicial pragmatists see the words of the Constitution through the filter of today’s realities.
For example, the Fourth Amendment states that: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”
Originalists see that as a right against illegal searches of a person’s body, their homes papers and effect. Pragmatists see all that as true, but also the right to control what the government can do about physical bodies. This, for example, is applied when a woman can choose to have an abortion, something the Founding Fathers didn’t directly speak to. It’s a “right to privacy,” a pragmatic extension of the words. Originalists find that unacceptable.
The Framework
Every Judge and Justice has there own vision of the “strike zone”, the “lens” through which they make judicial decisions. They may say that they don’t have an “agenda”. But if you know their “strike zone” then you can pretty much anticipate how they will make their “calls”. Judge Barrett has stated over and over in her testimony to Congress that she has not “made policy decisions” in the Court, nor would she in the future. But she has also said, over and over, that she will apply her judicial decision-making “framework” to the cases that she hears.
That “framework”, her “strike zone”, will determine her decisions. She is speaking truthfully when she says that she hasn’t made a decision about the contentious issues in front of the Supreme Court. But she is still being disingenuous. The framework she espouses directs her thought process and determines the results. So the Democrats and President Trump are right, and Judge Barrett is – well – being “judicial”. The end results are the same. To her, a “strike” is a “strike”, even though it’s a “ball” to someone else.
