Has Roberts Repudiated His Umpire Analogy?

Inside yesterday's Supreme Court opinion in Smith v. Bayer lies a repudiation of much of the far right's propaganda about judges. The severely flawed analogy of a judge interpreting the law with an umpire calling balls and strikes is one the right has favored since John Roberts used it at his confirmation hearing for his nomination to be Chief Justice. What makes yesterday's repudiation particularly interesting is that every member of the Court, including Roberts, signed on to it.

The opinion discussed whether one could assume that West Virginia's rule on forming class actions is the same as the federal rule, whose wording it closely follows. The lower court had concluded that the state rule is the same as the federal one. But as the unanimous Supreme Court explained:

The Eighth Circuit relied almost exclusively on the near-identity of the two Rules' texts. That was the right place to start, but not to end. Federal and state courts, after all, can and do apply identically worded procedural provisions in widely varying ways. If a State's procedural provision tracks the language of a Federal Rule, but a state court interprets that provision in a manner federal courts have not, then the state court is using a different standard and thus deciding a different issue.

In other words, you can't just read the text of a law and automatically know how to interpret it. Different judges can reasonably come to different conclusions about how to interpret the exact same text. The Justices do not condemn state courts for this, but instead understand it as an unexceptional aspect of jurisprudence.

In other words, judging is not simply the mechanical calling of balls and strikes.

PFAW