Did Chief Justice Roberts crib from Justice Jackson?

In the title of this blog, I refer, as Chief Justice John Roberts did in his confirmation hearing, to a judge as an “umpire.”  It turns out that Chief Justice Roberts was not the first Justice to have had such a thought. Justice Robert Jackson expressed a similar sentiment in 1951:

These men [Learned and Augustus Hand] found their highest satisfaction in judicial work. It fulfilled their every ambition. They put all they had into it—they have not shirked even its drudgery. They wrote their opinions with no appeal for applause and sought only to merit the ultimate approval of their profession. They have not been looking over their shoulders to see whom they please. They have represented an independent and intellectually honest judiciary at its best. And the test of an independent judiciary is a simple one—the one you would apply in choosing an umpire for a baseball game. What do you ask of him? You do not ask that he shall never make a mistake or always agree with you, or always support the home team. You want an umpire who calls them as he sees them. And that is what the profession has admired in the Hands.

Robert H. Jackson, Why Learned and Augustus Hand Became Great (December 13, 1951) (speech before the American Bar Association) (emphasis added by italics).

Chief Justice Roberts clerked for Justice William Rehnquist, who, of course, later became Chief Justice. Rehnquist clerked for Justice Jackson during the 1952–1953 term.

The law is like a never-ending river. That comforts me.


PS Many thanks to Daniel H. Borinsky for the tip.

5 responses

  1. The law is a morass.

    Always found the analogy to a baseball umpire inapposite. It’s 60 feet 6 inches, always. You don’t want him to make a mistake, because the calls, at least when Learned and Augustus sat, were not appealable. And to say that the Judge doesn’t work for the home team shows why so little in the way of social justice has been accomplished since the founding of the Republic. Ah, yes, the Federalist creed: Judges don’t make the laws, they just decide the cases based on the law. So much for preponderance, substantial, overwhelming and my favorites, reasonable and probable. Fundamental fairness is what Judges should use as a standard.

    To be fair to baseball, a love of my life until “roid and juice,” the man does the scoring, not the ball, the team or the city or state where the game is played. Sad to say, we cannot say that about the law.

  2. A judge is like an umpire … and I am like Earl Weaver. 😉 From Jackson’s speech: “If I am to take on ecclesiastical pretensions, I would choose for the evening the task of devil’s advocate.” And as usual, I will follow that lead.

    I wouldn’t attribute the concept to Justice Jackson. That judges were intended to be independent arbiters who apply a static set of rules to individual fact situations is as old as Codex Hammurabi, and all civilised societies had held them liable for failing to discharge that duty. The umpire came from cricket, several centuries older than our baseball. It boggles the mind to suppose that Jackson would have been the first to recognize the analogy.

    Unlike Jackson[1], I have come not to praise Learned Hand, but to bury him. And it should come as no surprise to anyone that I would just happen to have a famous Hand quote at my fingertips:

    It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause.

    Gregoire v. Biddle, 177 F.2d 579, 1949.C02.40082, ¶ 14 (2nd Cir. 1949) (Versuslaw).

    If, as Judge Hand asserts, this goes without saying, one is left to wonder how you can even get to a jurisprudence where “the defendants had an absolute immunity from liability, even though their unlawful acts had been induced only by personal ill-will.” Id. at ¶ 11. Official immunity is a barbaric and medieval doctrine[2], eschewed by all civilised societies[3] … and even Iran![4]. It is without colorable foundation in our Constitution, as it necessarily renders the Bill of Rights inert. This is judges, rewriting the law for their own provincial benefit. Cardozo and Hand, often cited as exemplars, were as vulnerable to this temptation as their successors.

    Law is like a river … into which judges have dumped so much raw intellectual sewage over the past two centuries that it makes the Cuyahoga[5] seem pristine by comparison. Just as no fish could survive there, no “rights” can survive in the Superfund site your learned colleagues have created. And yes, we actually do expect our judges to be mere umpires, which is why we get so damn furious when your colleagues[6] repeatedly and unapologetically rewrite the rule book for provincial benefit. Even Hercules (I have always loved the analogy) couldn’t possibly clean out this Augean Stable.

    It is also how I explain unpublished opinions. Rather than openly dump this juridical detritus into the river of precedent, judges bury it like housecats using a sandbar, but it seeps inexorably into that river nonetheless. And we are all downstream.

    With all respect, Your Honor, I find neither comfort nor beauty in the arbitrary and tyrannical rule by unelected and unaccountable judges this “never-ending river” has brought us to.

    [1] The carpet-bombing of Dresden, which had no military value, arguably constitutes a war crime (a fine point Jackson recognized), which should have given rise to a tu quoque defense. There is much to be said about Justice Jackson’s handling of the Nuremberg show trials, but that is beyond the scope of this missive.
    [2] It is often traced to the Peace of Westphalia [1648], wherein it was decided that other nation-states had no authority to interfere with the internal affairs of co-sovereigns.
    [3] International Covenant on Civil and Political Rights, art. 2. 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) (ratified by the United States Sept. 8, 1992) (jus cogens law); see e.g., Maharaj v Attorney-General of Trinidad & Tobago (No. 2), AC 385 (1979); Case C-224/01, Kobler v Austrian Republic, 3 CMLR 28 (2003) (European Union) (lead cases). No national tribunal in any outside jurisdiction has upheld the doctrine in recent years. Judicial liability for misconduct on the bench was codified in Codex Hammurabi, sec. 6.
    [4] Iran Const. art. 171, available at http://www.servat.unibe.ch/icl/ir00000_.html (trans. unknown) (judge personally liable for damages, with the State as guarantor if the judge is judgment-proof).
    [5] The Cuyahoga River, running through Cleveland to Lake Erie, was so polluted that in 1967, it actually caught fire. See http://www.youtube.com/watch?v=_jxV6BbREfY
    [6] Obviously, trial courts don’t get to create binding precedent.

  3. It is not so much that judges “work for the home team” (which is why we have the jury trial) as that they harbor an inherent bias toward their order, which they indulge at every opportunity. In the incisive prose of Thomas Jefferson, “permanent judges acquire an esprit de corps [and] … it is better to leave a cause to the decision of cross and pile than to that of a judge biased to one side.” Thomas Jefferson, Letter (to L’Abbe Arnoux), Jul. 19, 1789 at 2; see Stephen Breyer, et al., Implementation of the Judicial Conduct and Disability Act of 1980: A Report to the Chief Justice (Sept. 2006) at 1 (“undue guild favoritism”).

    As for me, I prefer Justice Holmes’s (probably apocryphal) response to Judge Hand: “It is not my job to do justice. My job is to apply the law.” If judges did this–and everyone here knows that they don’t, except in the most routine of cases [e.g., Posner’s “greying” remark]–I would be satisfied. But they don’t, and I am not.

  4. I’m not sure it’s apropos of the foregoing discussion, but in the Second Circuit the maxim among lawyers was, “Quote Learned, but follow Gus.”

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