Judge Vaughn Walker, most famous for his opinion finding Prop 8 unconstitutional, has written this article, based on an October 2011 lecture, in the Illinois Law Review, titled “Moving the Strike Zone: How Judges Sometimes Make Law.” Moving strike zones sounds a lot like moving the goal posts, to borrow another sports analogy.
Here is the abstract:
Many judges and politicians say that judges should act like umpires in the judicial arena and simply “call balls and strikes.” These judges and politicians have convinced a large portion of the U.S. public that judges should act this way and, therefore, should not make law but instead interpret the Constitution using so-called “originalism” or “strict constructionism.” But is it even possible for a judge to simply act as an umpire?
This Article argues that there is no fixed “strike zone” for judges to use and that they must rule based on the facts and circumstances of the cases before them. This Article starts by discussing the origins and inadequacies of the comparisons of judges to both baseball umpires and the commissioner of baseball. It then moves on to discuss the restraints on judicial decision making present in the U.S. system regardless of a judge’s philosophical viewpoint. This Article then moves on to discuss how judges not only make law but cannot avoid doing so. Finally, this Article asserts that judges’ rulings reflect the common understanding of the day and that the clear and fixed legal rules that would allow judges to act as umpires simply do not exist.
From the conclusion:
Case by case, what judges do and must do is take account of the pitcher and the batter in the legal arena, watch the windup, the throw, the curve, and the delivery and then, where they believe appropriate, move the strike zone.
I would not want to play baseball with Judge Walker behind the plate. Even the 9th Circuit, exercising what maybe we should call instant replay, did not agree with Judge Walker’s amorphous strike zone.
Update: Speaking of baseball, I am watching Roger Clemens’s return to baseball with the Sugar Land Skeeters. The commentator said something to the effect of, “if you are the homeplate umpire, you are going to give Clemens 2 or 3 inches.” Moving strike zones indeed.