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Judicial courage

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February 9, 2022

By Jeremy Dys, Senior Counsel

Umpires are supposed to get booed on the close calls — maybe especially when they are right.

At his confirmation hearing, Supreme Court Chief Justice John Roberts noted that the role of any jurist is to be that of an umpire, calling “balls and strikes, and not to pitch or bat.”

As President Joe Biden mulls his nominee to replace a retiring Justice Stephen Breyer, Gov. Ron DeSantis notes that judges ought to remember that umpires are supposed to make hard decisions.

The Chief’s analogy is apt.

Umpires, like judges, are expected to know the rules of the game, maintain neutrality, have the experience to spot a strike on the corner at 97 mph and be decisive in applying the rules to the players, managers, and spectators.

Umpires also get booed. Managers often argue with an umpire’s call and receive the jeers of thousands of fans. But that comes with the territory. Umpires are supposed to get booed on the close calls — maybe especially when they are right.

At a recent meeting of the Florida chapter of The Federalist Society, DeSantis told about 1,000 attendees that judges need to be prepared to be booed. He said, “I kind of feel that it’s always our side where you will have somebody just not have the fortitude or the backbone to faithfully apply the law and Constitution in situations in which it will not be popular with the elite rung of our society, where you will get smeared by corporate media, where you will have law professors screeching and all of this other stuff.”

It is easy to say the right conservative things at conferences that get the plaudits of elites in power and professors in their ivory towers. What is often lacking from judges is the courage to do the hard things that will not score well at the DC cocktail party or may even get you harangued at the grocery store. Most judges can evaluate esoteric administrative rules and rein in the administrative state. Decisions requiring Chevron deference — the doctrine requiring judicial deference to administrative actions — are the equivalent of an intentional walk.

The marrow of an umpire on the bench is his or her willingness to do the hard things that uphold the rule of law and our country’s commitment to its Constitution. A judge might get someone in the cheap seats riled up over an administrative law decision, but most fans will be more interested in their peanuts or Cracker Jacks.

Most Americans are aware that, in a few weeks, the Justices will hand down a decision in Dobbsa case out of Mississippi involving limits to abortion. But other cases this term also include the right of religious schools to operate according to what they believe and people of faith to be seen being religious in public. Roe v. Wade, the limits of the Establishment Clause, and the boundaries of the Free Exercise Clause are before the Justices this term — the legal equivalent of bases loaded.

For decades, conservatives hoping to find their way to the federal bench have agreed that Roe v. Wade was wrongly decided. Will the new conservatives make the hard call?

The Free Exercise Clause is easy to support in the abstract, but when a public-school football coach can be seen by students, praying quietly at the 50-yard line by himself, will the Justices side with those like the school district who would send him to the press box to pray instead?

These seem like easy calls to make when you’re in the cheap seats.

On the field, with thousands ready to boo your call, it gets a little harder. Yet, this is where the type of judicial courage DeSantis speaks of is most needed.

It takes little courage to evaluate administrative actions from a bloated bureaucracy, especially when the ruling class, media elites, and law professors already agree. The type of courage our Founders intended our judges to hold is demonstrated in the application — and protections — of the broad freedoms found in the Constitution and the willingness to withstand the boo’s that will inevitably come.

Nominees to the federal bench should be able to demonstrate such courage. More than a good pedigree or high standing among elite media and law professors is in order.

Nominees to our nation’s courts should present to the American public a wealth of data — in baseball terms, analytics — demonstrating a legal career committed to defending the freedoms enshrined, and protected by, the Constitution.

That is the type of courage we should all want in a judge.

Note: This article was first published on Florida Politics and is re-published here with permission. The article presents the main points of an op-ed published in Florida Politics. This work was authored by Jeremy Dys. The full article can be found on the Florida Politics website, here.

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