October 28th, 2005 at 9:44 am
Come the second weekend of January, unless I’m out of town, I’ll be donning the vertical black-and-white stripes to begin officiating another season of Upward basketball.
Being a referee has brought its share of experience and decisions. There have been instances where I’ve “known” a foul was probably made, but I had to call what hit my retinas. I’ve received criticism for calling games too tight, as if the NBA the kids watch is a showcase of rule obedience. Sometimes (not often) a kid can be so bad that calling has to be relaxed for that kid so that the game can continue, but that earns the ire of the parents with able kids who are held to a higher standard.
One thing I’ve not been accused of, thankfully, is favoritism, even in the occasional occurence of refereeing a niece or near relative. Favoritism in my opinion is not measured by how many calls “go” a certain way. Rather it is the deviation from the rules because a referee wants to see a certain result. It’s hard to prove because favoritism requires intent, but the first criteria must be deviation from the rules.
When “we” pick a Supreme Court nominee, we’re not picking the strongest players of the game. We are picking the referee. Someone who can hold the rules in his/her hand and determine against the text of the Constitution whether a behavior is explicitly allowed. They are not to change the rules, no matter how much a particular consequence is desired.
Suppose the NBA commissioner changes a rule, such as lowering the height of baskets. There are consequences from that rule change: owners can hire smaller players, shooters train to hit the new targets, rims constructed more sturdily to withstand the number of people who may literally crash the boards, the cost of modifying all the basketball equipment in all the stadiums, and so forth.
Consequences as we know result from a Court that changes the rules: companies have to be wary of the hue of a person’s skin, property owners make decisions taking into account the government’s desire to take that property away, communities witnessing the extinguishing of nascent life against their will, houses raided for plant life against the will of the person and even the community, and in the case of Massachusetts, basic confusion of family structure.
Referees do not score points. They do not change the rules of a game. They communicate the effects of the rules set forth by appropriate league bodies. Those bodies do not determine the rules under which referees officiate years from now. Likewise, the Court is supposed to take the hierarchy of law in hand and render determinations as to whether the Constitution expressly allows or prohibits a law. Legislators cannot write rules using the vocabulary of the uncertain future. They are temporally bound to write using the vocabulary of the time they live in.
This is why originalism matters. To say “eminent domain” means something different in 2005 rather than in 1787 is to burden our Founding Fathers with knowing the future of our language. We have to determine what they meant, rather than what we want a phrase to mean. I hope that the next nominee has the desire to ponder what a legislative body understood its words to mean when it wrote a law and that the nominee has that desire documented in cases which test that understanding.
Update, Oct. 30th, 9:14am: Aardvark Alley handed out a Golden Aardvark (Aardie) for this post. Thanks!
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November 3rd, 2005 at 4:27 pm
[...] Umpires, like referees and Supreme Court justices, should not change the game, but report what happened. Instant replay is already being considered as an aid to help Blue out. There’s a system of accountability already in place. It’s possible that the umpire may not work playoff games again. Isn’t that enough of a consequence? [...]