Timothy P. O'Neill

Chicago Daily Law Bulletin
Volume: 152 Issue: 29
 
February 10, 2006

Determining the Strike Zone on the New Court

We are now faced with our first new justices on the U.S. Supreme Court in over a decade. And the obvious question is what effect this will have on the court's criminal decisions.

Defense lawyers will be happy to know that Chief Justice John G. Roberts Jr. at his confirmation hearings said a judge should be like an umpire, and that the job was simply ''to call balls and strikes, not to pitch or bat.'' Justice Samuel A. Alito Jr. said he would try to emulate Sandra Day O'Connor in ''her belief that each case needs to be decided on its complex facts'' and ''her dedication to the case-by-case approach to adjudication.''

Feel better?

Then let me remind you that Justice Clarence Thomas at his confirmation hearings told us that his vision of a judge was that ''you want to be stripped down like a runner'' and ''shed the baggage of ideology.''

Oh, well.

And I don't mean to just pick on pro-prosecution justices. In his third-of-a century on the U.S. Supreme Court, care to guess in what percentage of non-unanimous constitutional criminal cases former justice William Douglas voted with the prosecution? Try fewer than 5 percent. Ward Farnsworth, ''Signatures of Ideology: The Case of the Supreme Court's Criminal Docket,'' 104 Michigan Law Review 67 (2005).

And in case you were wondering: O'Connor's ''intensive case-by-case factual analysis'' of each non-unanimous constitutional criminal case she decided resulted in her voting with the prosecution around 85 percent of the time, according to Farnsworth.

Am I being cynical? No, just realistic about voting patterns in the Supreme Court.

Judge Richard A. Posner of the 7th U.S. Circuit Court of Appeals offers a provocative look at this subject in a recent article in the Harvard Law Review, ''The Supreme Court, 2004 Term Foreword: A Political Court,'' 119 Harvard Law Review 31 (2005). Posner argues that when the court decides constitutional cases it is functioning as a ''political organ.'' This is because the kinds of constitutional cases on the court's docket are by definition controversial and thus ''occupy a broad open area where the conventional legal materials of decision run out and the justices, deprived of those crutches, have to make a discretionary call.'' Therefore, Posner contends, ''Constitutional cases in the open area are aptly regarded as 'political' because the Constitution is about politics and because cases in the open area are not susceptible of confident evaluation on the basis of professional legal norms. They can be decided only on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms.''

Because the bulk of the court's docket consists of cases that occupy this ''open area,'' Posner avers that we must recognize the Supreme Court as an ''inherently, and not merely accidentally, lawless judicial institution.''

Lawless?

Posner explains, ''I use 'lawless' in a nonjudgmental, though unavoidably provocative sense. I mean the word simply to denote an absence of tight constraints, an ocean of discretion.'' He decries the fact that ''commentary continues to pretend that the justices are engaged in a primarily analytical exercise that seeks 'correct' answers to technical legal questions.''

Posner concludes his Stanley Fish-ing expedition by stating ''There is almost no legal outcome that a really skillful legal analyst cannot cover with a professional varnish. So a Supreme Court justice — however outlandish-seeming his position in a particular case — can, without lifting a pen or touching the computer keyboard, but merely by whistling for his law clerks, assure himself that he can defend whatever position he adopts with sufficient skill and force to keep the critics at bay.''

Go back to Roberts' comparison of a judge to an umpire. When I think of a baseball umpire I think of someone confined by a strict set of rules. For a base umpire, either the runner beats the throw or he does not, with ties going to the runner. For an umpire making calls along the outfield lines, either the ball is fair inside the line or foul outside the line, with a ball landing on the line being considered fair.

Yet Roberts referred to a specific type of umpire — the home plate umpire who calls balls and strikes. Was this a deliberate choice? If not, he may have unwittingly stumbled into an important insight. Because of all the jobs the umpire does, this may be the one that includes the greatest amount of discretion.

The strike zone is technically fixed (within the limits of a batter's stance) and should be immobile. But as any fan knows, every home plate umpire has his own conception of the strike zone. Some call high strikes, some call low strikes. Some give the pitchers the corners of the plate, some do not. Some disgruntled fans have even championed the use of QuesTec, a system of cameras that determines whether a pitched ball is in the formally defined strike zone.

So what are the respective ''legal strike zones'' of Alito, Douglas, Thomas, O'Connor and Roberts? Again, to cite Posner, justices do not always share ''common premises'' when facing legal questions. Posner offers a series of examples of judges approaching legal problems from very different perspectives: ''One [justice] worries about subtle forms of sexual harassment; the other (invariably male) worries about being falsely accused of harassment. One considers affirmative action naked discrimination; the other considers it social justice and political necessity.… One views abortion from the standpoint of the hapless fetus, the other from the standpoint of a woman forbidden to terminate an unwanted pregnancy.''

But for our purposes, Posner's most telling dichotomies are these: ''One [justice] thinks the public safety more important than the rights of people accused of crime; the other thinks the opposite. One [justice] views the actions of the police through the lens of a potential victim of crime, the other through the lens of a person wrongfully accused of crime.''

So what happened when home plate umpire Roberts had to call his first ''balls and strikes'' in a death penalty case two months ago? What if I also told you that Justices Antonin Scalia, Thomas, O'Connor and Anthony M. Kennedy were on the government side and Justices John Paul Stevens, Ruth Bader Ginsburg, Steven G. Breyer and David H. Souter were on the defense side? Do you have any doubt at all which side Roberts joined? How much time do you think he spent poring over the voluminous record to make a case-specific determination on how to vote? (And, to be fair, how much time do you think Douglas would have taken to decide how to cast his vote?) If your gut reaction is that Roberts shares ''common premises'' on the death penalty with Stevens, Souter, Breyer and Ginsburg, might I suggest an exciting career in hotel management? Brown v. Sanders , No. 04-980, decided Jan. 11, 2006.

And don't hold your breath on another death penalty case argued before the U.S. Supreme Court in January. House v. Bell, No. 04-8990, argued Jan. 11, 2006. The 6th Circuit decided this case en banc. Result? Every circuit judge appointed by a Republican president voted for the government, while every circuit judge appointed by a Democratic president voted for the defense. Go figure.

Finally, take a look at Farnsworth's article cited earlier in this column. Farnsworth decided to determine just what role a justice's ideology played in criminal decisions in the U.S. Supreme Court. He proposed that a comparison should be made between a justice's decisions in two different kinds of criminal cases: those raising constitutional issues and those with nonconstitutional issues (e.g., statutory construction issues). Farnsworth began his research by positing that there should be no obvious connection between these two types of cases. Statutory construction, after all, has its own set of ''neutral principles'' and interpretive rules that should not favor one side or the other. (One exception would be the ''rule of lenity'' that favors the defense in a situation of true statutory ambiguity.) He also decided to confine his research to ''close cases,'' i.e., cases that were not decided unanimously.

What did Farnsworth find? He discovered an amazing congruence between a justice's votes in all non-unanimous criminal cases, regardless of whether constitutional issues were involved. For example, for both types of cases former chief justice Warren Earl Burger voted for the government between 85-90 percent. Thomas's figures are almost identical to Burger's. On the other hand, Douglas voted for the government in both types of cases less than 10 percent of the time.

What Posner describes as the ''premises'' a justice brings to judging, Farnsworth calls ''priors.'' He concludes that ''the traditional story is that priors are methodological: they are ideas about how to decide cases.… My claim is different. It is that the judicial priors used to resolve close cases are substantive: they are notions precisely about which party or policy should prevail.''

Welcome to the Roberts Court.

''Play ball!''