Legal Realism Sometimes

The New York Times editorial today marking the impending start of its term is unexceptional. That is unsurprising; this is the role of newspaper editorials. The only surprise is that I read any of it. But having done so, I was struck by one line: "It is precisely during times like these that the American people need the Supreme Court to play the role Chief Justice Roberts memorably articulated at his own confirmation hearing — that of an umpire calling balls and strikes, ensuring a fair playing field for all."

I am not sure anyone, possibly including the Chief, believes this line. Certainly mockery of Roberts's line is standard-issue for most observers and critics of the Court. Among those observers and critics we can count the editorial page of the New York Times. In the past, it has called the line "simplistic" and suggested that it had been subjected to a "brilliant demolition" in a speech by then-Justice Souter. Another time, it referred sympathetically to criticism of "the notion that constitutional interpretation is merely a robotic task of calling balls and strikes." They may be mistaken or misled by by professional duty and self-conception, but I would guess with some confidence that every member of the current Supreme Court believes in the concept of "calling balls and strikes" more sincerely than any member of the New York Times editorial board. 

I have no quarrel with today's editorial in general, although I also have no interest in it. (To be uninteresting and unquarrelsome is, again, is the role of newspaper editorials.) I do find interesting the degree to which many people and institutions slip in and out of legal realism, at one moment scoffing at the idea that law could be other than political and, in various senses, interested, partial, and policy-oriented, and at other times invoking various clichés, previously "brilliantly demolished," to praise, condemn, or urge a judge or court, or appeal to the public, according to the needs of the moment or the state of their sentiments. Critical thinking is a fair-weather habit.