The Supreme Court as Umpire?: How the Global Warming Decision Illuminates the Role We Ask the Justices to Play

Chief Justice John Roberts gave a memorably smooth performance during his confirmation hearings. The moment for which his testimony may be most vividly remembered, is one where he used a metaphor to describe the judicial role: Judges are like baseball umpires, Roberts said. Their job is simply to call balls and strikes, applying the strike zone defined by the Constitution and the laws the Congress enacts.

At the time, many observers -- including myself -- criticized Roberts for dismissing the role that interpretation and political judgments inevitably play in judicial decision-making, where there sometimes (indeed, perhaps often) is no objectively "right" answer to the questions posed by cases. This is especially true with the kind of disputes that make their way to the Supreme Court: close and complicated cases over which lower courts are already in disagreement.

However, the Court's recent decision in Massachusetts v. EPA (in which the Court rejected the EPA's claim that it had no authority under the Clean Air Act to regulate greenhouse gases) has caused me to revisit the much-discussed umpire metaphor -- as I will explain.

The Umpire Metaphor: The Extent to Which It's Wrong -- and Right

In a sense, the split decision in Massachusetts v. EPA shows the weakness of the umpire metaphor, in the sense that it fully confirms that judging at the Supreme Court is nothing like calling balls and strikes, where an objective right answer exists, at least if you have a good instant replay.

But in another way, the case shows that we -- by which I mean, the public at large -- really do look at our Supreme Court Justices as "umpires" in a different sense. For better or for worse, we count on them to provide fair and impartial guidance with respect to political disputes -- and what they say carries enormous moral and political weight, regardless of what the Justices themselves might intend.

In this sense, the umpire metaphor, to the extent it has power at all, is true in exactly the opposite way from what Roberts intended. He meant the metaphor to minimize the judicial role -- and thus stressed that the Supreme Court is only an umpire, judging limits, and no more. But in the end, the umpire metaphor tends to maximize the Court's role instead: Our desire to convert our court into a font of impartial wisdom -- an umpire of a particular kind -- expands, rather than limiting, judicial power.

The "Global Warming" Decision: The Legal Issues Raised

In Massachusetts v. EPA, the Supreme Court tackled two legal issues. It is not my intention here to hash fully through the merits of either question. Other commentators have done this admirably, including a fine column on the standing issue by my FindLaw colleague Michael Dorf. Rather, I want to discuss how the way the Court resolved these questions reflected on its role and on the accuracy or inaccuracy of the "umpire" metaphor.

First, the Supreme Court had to decide whether the state of Massachusetts had "standing" to sue the EPA -- which is the legal jargon for deciding whether Massachusetts had the kind of grievance against the EPA that the Constitution give the judicial branch the power to resolve. Second, the Court had to answer the following question: Assuming Massachusetts had standing to sue the EPA for deciding not to regulate carbon dioxide emissions, did the EPA's decision violate the EPA's statutory duties under the Clean Air Act?

By a 5-4 vote, with Roberts in dissent, the Court ruled that Massachusetts did, indeed, have standing to sue, and that the EPA's refusal to regulate did, indeed, violate the Clean Air Act. Although the Court majority did not affirmatively require the EPA to regulate carbon dioxide emissions, it required the EPA to give a reasoned scientific explanation for refusing to do so -- and made the majority's own view on the subject pretty darn clear: The EPA, in the majority Justices' view, ought to regulate, and soon.

The Standing Issue, and the Umpire Metaphor

The Court's decision on the standing issue -- and, in particular, the debate between the majority and the dissent over whether Massachusetts had standing to challenge the EPA's stance -- really ought to be the death knell to invocations of the umpire metaphor to say that all judges -- and even Supreme Court justices -- do is to apply the pre-set rules given to them by the Constitution or Congress.

The standing doctrine derives from Article III of the Constitution, which limits the federal judicial power to actual "Cases and Controversies." The Constitution never uses the word "standing," however, and does not elaborate on how to define a "case" or "controversy."

Instead, standing is a judicially-created tool for self-policing Article III's constraint on judicial authority. It helps guarantee that the cases the federal courts -- including the Supreme Court -- decide are limited to truly adversarial proceedings in which the parties have real stakes in the case, rather than disputes that ask the courts to answer legal questions in the abstract, or in advance of any true conflict. Over time, the doctrine has also become a mechanism for preventing the courts from over-involving themselves in the essentially political disputes that are better left to the elected branches for resolution.

As the standing doctrine has evolved, its basic requirements are that a party bringing suit must have a concrete and particularized injury (or that such injury is imminent), that the injury is fairly traceable to the acts of the defendant, and that a favorable ruling will actually redress the injury.

And as anyone who takes a look at the history of the standing doctrine can see, there has been nothing scientific about its application. To the contrary, all the factors require subjective judgments about whether an injury is sufficiently particularized or imminent, and about how closely tied the injury is to the challenged conduct. As a consequence, it should come as no surprise that standing decisions often appear to be either basically arbitrary, or result-oriented in their reasoning.

How justices approach standing depends on two basic variables.

First, justices who favor broad access to the remedies available in federal court (liberal justices, by and large) favor a lenient view of standing. Conversely, conservatives seeking to cut back on Warren era judicial review take the opposite approach.

Second, justices favoring broad executive power champion a robust standing doctrine that keeps interbranch clashes safely out of court, thereby insulating executive decision-making from challenge. Conversely, justices leery of executive power are on the other side, favoring the consideration of at least some cases where the Court is asked to set limits on executive power.

Third -- and unsurprisingly in light of the other two points -- the Court's standing doctrine has expanded or contracted in direct relationship with which ideological group controls the Court at any given time.

Massachusetts v. EPA nicely illustrates the point. It is no coincidence that the 5-4 breakdown of the Justices mirrors precisely their breakdown over the recent Executive wartime powers case, Hamdan v. Rumsfeld -- in which the Court held, 5-4, that the President could not use military commission to try enemy combatants without Congress's consent. In both cases, ,Justices Breyer, Ginsburg, Kennedy, Souter, and Stevens were in the majority, and Chief Justice Roberts and Justices Alito, Scalia, and Thomas were in the minority

As this list indicates, in Massachusetts v. EPA, the Justices more concerned about the arbitrary exercise of Executive power voted to expand the standing doctrine; and the Justices less concerned with that problem voted against it.

There are many things one could say about the debate beween these two ideological positions. But one of them is not that the justices are simply calling balls and strikes according to a clear and fixed set of rules. Nor can one reasonably take the position in this split, subjective judgment, and even political views, taken in the broadest sense, play little or no part. Standing doctrine -- unlike a call as to whether a pitched ball was, or was not, in the strike zone -- inevitably reflects personal views about political structure and accountability that cannot be subject to objective verification.

The Public's Need for the Court to Be the Umpire of Truth as to Global Warming

Interestingly, though, even though the Massachusetts v. EPA decision belies the umpire metaphor, at the same time, public reaction to the decision shows, perhaps somewhat perversely, just how deeply we as a body politic seek "umpires" for our political disputes.

The Court's rebuke of the EPA for refusing to regulate carbon dioxide was pretty uninteresting from a legal point of view. The majority applied pretty standard principles for reviewing administrative agencies' decisions, and the Court did not affirmatively require the EPA to regulate greenhouse gases: The agency can still decide on remand, if it so chooses, that its original decision not to regulate was the right one.

But legal technicalities aside, the Court seemed to the public -- and was characterized in many headlines -- as weighing in on not only on the narrow, technical legal issue of standing, but also on the broader moral and political argument over global warming, and weighing in on the side of those who see a growing and imminent threat. Thus, the public reaction, at least as I sensed it, was very much that a neutral arbiter -- an umpire -- had called the Bush Administration out at home plate.

Moreover, if the decision had gone the other way -- even if it had gone the other way on the technical issue of standing -- the moral weight of the Court would doubtless have been seen to have been placed on the Administration's side.

In short, no matter the Chief Justice might say, judicial decision-making is often, inevitably, about policy judgments. Moreover, the decisions themselves are, inevitably, political in consequence.