“Judges are like umpires,” said John Roberts, the Chief Justice of the U.S. Supreme Court.
“Umpires don’t make the rules; they apply them,” he continued. “It’s my job to call balls and strikes and not to pitch or bat.”
An academic study showed that home plate umpires make an average of 14 bad calls in each game. The best umpires miss more than seven percent of calls. Supposed to simply apply the rules, they determine just what the rules mean.
Members of the Court express their opinions of what the law is and make some bad calls. A Supreme Court decision is officially called an “opinion,” a reminder there’s no objective method of determining the law, just as umpires’ calls are a matter of their judgment.
Roberts and the rest of the Court are now taking the playing field in one of the most important “games” ever played in American history. They will be faced with deciding how much power the Constitution gives to the president. The opposing teams are the Democrats and the Republicans.
The Democrats believe President Trump has gone beyond the bounds of his office. The Republicans, who might share that view if the president were a Democrat, somewhat nervously defend their president and his use of power.
Roberts tries to convince people that the Court is neither Republican nor Democratic. He points to unanimous decisions or ones in which party lines don’t matter. That’s true, but it ignores cases where the Court has the last word on what the Constitution means.
Recent GOP presidents have asserted they have virtually unlimited power to meet the challenging needs of the times. The courts, not Congress, are the only check on the president. By trying to stack federal courts with his appointees, the president may hope for supportive rulings.
The country is now about to see if the judges are good umpires or if they reveal bias one way or the other. They proceed carefully, but sometimes delay to help one side, taking months to
decide. Unlike umpires, who must make snap decisions, the judges set their own rules on how long to take.
There are at least the types of cases on presidential power that may force the Supreme Court to show if they are big league umpires.
While they hold office, are presidents immune from the law on matters outside of the government? Previously, the Court concluded unanimously that Presidents Nixon and Clinton did not have such immunity.
A few cases concern whether Trump must turn his income tax returns over to legitimate investigations at the state and federal levels. In one such case, Trump’s lawyer claimed in court that the president could not even be investigated for murder as long as he was in office.
Does the president have a privilege allowing him to prevent people in his administration from testifying or turning documents over to a legitimate investigation? While courts have ruled that communications directly with him may enjoy “executive privilege” is there a “presidential privilege” that goes further?
Courts will have to determine if “checks and balances” applies or if the president can completely block executive branch officials from testifying in a congressional proceeding.
Are presidential powers unlimited? This year, Trump said: “I have an Article 2 [of the Constitution] where I have the right to do whatever I want as president.” Is that true? If so, there would be no basis for impeaching any president ever.
The Court will have to decide the extent of the power given to the president by the Constitution or acts of Congress. Definitely, this is more than calling balls and strikes.
The American people are about to get a current events lesson on checks and balances among the three branches of the federal government. Roberts and his Court will teach it.
Beyond all that, Roberts will really get to be something of an umpire. It’s almost assured that Trump will be impeached and there would be a trial in the Senate. The sole judge will be Roberts, while the Senate will be the jury, rendering its verdict.
This is not a criminal trial, but only to decide if Trump should be removed from office. The decision will be mostly political, not legal. The Republicans say the Democrats seek to reverse the 2016 election at any price. The GOP obviously wants to preserve it, apparently at any price.
The trial will work only if Roberts can ensure it’s fair. He’ll be like an umpire, surrounded by angry players, in the last inning of the World Series.
Gordon L. Weil formerly wrote for the Washington Post and other newspapers, served on the U.S. Senate and EU staffs, headed Maine state agencies and was a Harpswell selectman.
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