The US Supreme Court : Case Umpire or Guardian of the Constitution of the United States?

What is the role of the Supreme Court of the United States in the American judicial system? What is its role in the American governmental system?

Professor Geoffrey Stone, former Dean of the University of Chicago Law School, has an important posting at the University of Chicago Law School Faculty Blog titled Chief Justice Roberts and the Role of the Supreme Court, in which Stone expresses his misgivings about the troublesome views recently expressed by U.S. Supreme Court Chief Justice John Roberts on the role and responsibility of the U.S. Supreme Court.

Stone writes:

"In a recent speech in Chicago, Chief Justice John Roberts stated that the Supreme Court functions best “when it can deliver one clear and focused opinion of the Court.” He lauded the importance of judicial “consensus,” arguing that cases should be decided “on narrow grounds” and that differences of opinion among the Justices generally should be expressed secretly in the Court’s private conferences, rather than in published dissenting or concurring opinions.

As [a] student of constitutional law ... I find his understanding of the role and responsibility of the Supreme Court disturbing. It reflects the same rather simple understanding of our constitutional system as his assertion during his confirmation hearings that Supreme Court Justices are like baseball umpires, whose job it is simply to call the balls and strikes of constitutional law."

We supported the nomination of Roberts to his position as Chief Justice because of his impeccable track record and intellectual qualifications, but we have since criticized the new Chief Justice once already for his jurisprudential inertia and we worry that he will be a "do nothing" Chief Justice. A man in his position does not "follow" the rest of the country's legal community, rather, he must be their leader. If he is not able to exercise this function, especially in a time of great turmoil in legal areas such as intellectual property law, he is in the wrong job. Note that our dissatisfaction with Roberts up to now has nothing to do with partisan politics but rather with the fact the Supreme Court seems to be dozing away while certain parts of the legal system - such as intellectual property law - are in a shambles.

What Stone writes about Roberts speaks to the fundamental core of the problem: what is the role and responsibility that the Supreme Court of the United States has in the American legal and political system, seen as a whole, and what is Roberts's job in that system?

The Judicial Role of the US Supreme Court

Anyone who has a good grasp of the fundamental elements of American jurisprudence will certainly agree with Roberts - at least in principle - on his recently expressed view regarding the transparent judicial role of the Court.

Obviously, that judicial role - on its face - is to decide cases, and to decide them effectively.

Optimally, effective exercise of that judicial role presumes the following objectives:
1) to form as great a consensus of opinion as possible among the Justices of the Court on cases brought before that Court; and,
2) to issue opinions on decisions of the Supreme Court which clearly and logically set out the applicable law for all citizens and lower courts to follow.

So far so good.

The Governmental Role of the US Supreme Court

However, the founders of the American system of government also foresaw an additional, perhaps even more important role for the judiciary beyond the mere duty of "deciding cases", and this applies particularly to the nation's highest court. The founders envisioned that the judicial branch of government serve as an equally strong member of the triumvirate of government formed by the legislative, executive and judicial branches. In this less transparent governmental role, the judiciary must act as a "check and a balance" on the other two branches of government.

That role makes the US Supreme Court an active player in the government process and not merely a passive umpire in a game played by others.

The Constitutional Role of the US Supreme Court

The judicial and governmental roles of the United States Supreme Court are inextricably joined in the Court's power and responsibility to interpret and apply the Constitution of the United States to specific cases. In other words, even when the US Supreme Court simply "decides" or "umpires" a case, as Roberts might describe it, it actually does far more than that.

As written at The National Legal Center for the Public Interest:

"Even though it only has 4,400 words, the United States Constitution is the most influential legal document ever created. This document – which was written by our Founding Fathers over 200 years ago – still plays a key role in our daily lives.

One of the chief responsibilities of the U.S. Supreme Court is to interpret this great document, and make sure that the vision of our Founders is carried through to this day. Although some may argue about the proper interpretation, no one can question the wisdom of its underlying principles.

To view the U. S. Constitution, click here:
http://www.nara.gov/exhall/charters/constitution/conmain.html"

Conclusion

It is perhaps time for Chief Justice Roberts to stop comparing his job to that of a baseball umpire. It is an analogy which does not hold. When a baseball umpire is in doubt, he can pull the rule book out of his pocket - BUT - the baseball umpire does not MAKE the rules he applies, though he is authorized to rule in the absence of a fitting rule. In the main, however, others write those rules for him and change them, as necessary, from season to season. The baseball umpire applies the rules to a given game situation, nothing more.

In the case of the Supreme Court, the general rule book is the Constitution but there the similarity with baseball ends. The US Supreme Court by its decisions itself writes the detailed interpretative rules to which other umpires (other courts) and players and coaches of the game (the citizens) are then mandatorily bound. That is a substantial difference in responsibilities.