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Was “Marbury” Wrong? And Why Does Baseball Need A Commissioner?
The authority of the judiciary in America stems from the creation of a Supreme Court in the Constitution, the Supreme Court’s own rulings about its powers and limits, and congressional enabling statutes for the lesser courts. In the early days of the country, the role of the Supreme Court as the ultimate interpreter of the Constitution was an open question. The Court, in a case called Marbury vs Madison, anointed itself as the sole authority. But over the years the Court has limited direct conflict with Congress and the Executive by also creating the “political question” doctrine. This doctrine permits the Court to graciously yield to one or both of its “co-equal” partners by essentially saying it is a matter for voters and not the Court.
The current Court has been slow to employ this card in the recent contretemps between the lesser courts and the Trump administration. Although one would not know it from the media, the Trump administration has not (yet) defied a court order. But lawfare is pushing the president to that point — and that may be the goal of the Progressive Project.
The Court may yet recognize the application of the “political question” to many of the current conflicts to the extent it can’t cite (as they have already done in one case) a specific jurisdictional limit. But every day brings us closer to a “constitutional crisis”. We are not there yet, but, to be clear, it is the courts and not the administration fomenting the crisis.
What is a “constitutional crisis”? It is a conflict between co-equal branches of government when one or more branches exceed their constitutional authority. In Marbury, the Court said it was the ultimate arbiter. But that cannot be. The “political question” doctrine is an implicit admission of this. Failing that, the Court ceases to be an umpire calling balls and strikes.
Which brings us to the second question in the post’s title — why does baseball need a commissioner? They have teams, umpires and a rulebook. Can’t the umpires just run the game? They say when the game is in play. They call balls and strikes. They rule hits and foul balls. They record outs and vouch for the score. They say when the game is over.
Years back the major league umpires threatened to go on strike. Sandy Alderson, then an executive in the commissioner’s office, was quoted as saying, “I don’t know whether this is a threat to be ignored, or an opportunity to be seized.” Chief Justice Roberts, don’t make President Trump go all Sandy Alderson on you.
Published in General
I’m fascinated by the political question doctrine; I’d never heard of it. So what would actually occur if the decision is supposed to go back to the voters–would it be included in an election? Or a Constitutional Convention?
It would depend on the ruling that was in question. They might vacate the lower court’s ruling and say, “Not our (the courts) problem.” Roe v. Wade was an example that should have been decided by the people. Eventually, that bad ruling was overturned and went back to the individual states.
Looks like a good example!
https://www.law.cornell.edu/wex/political_question_doctrine
Basically they say “if this is a problem, it’s not one for us to solve”. It doesn’t move the problem anywhere, it’s just takes the courts out of it.
This has always been a terrible analogy and I say that as someone who umpired for 20 years. And by the way, baseball has three rule books not one. There is the Major League Constitution that governs interactions between the clubs, there are the Collective Bargaining Agreements that governs interactions between the clubs and the players and the league and the umps and then there are the rules of the game. Each one of those comes with jurisprudence, just like the US Constitution.
The one overarching theme that runs through the great game of baseball is that if you are around it long enough you will see something that you’ve never seen before. In those cases, umpires are given latitude to interpret the rule book as they see fit.
When George Brett hit a home run against the Yankees with an illegal amount of pine tar on it, the umpiring crew nullified the home run. The Royals appealed to AL President Lee MacPhail and their protest was upheld. MacPhail’s decision is now part of baseball’s jurisprudence. In 2020 MLB killed the ability to protest an umpire’s interpretation of the rules and now they are free to interpret everything as they wish. When the last out for the losing team is recorded the game is in the books forever.
Unlike baseball, the Supremes reverse themselves on average of once per year since 1810.
Which brings me back to the failure of the analogy. The law is not a game and if the Constitution is to work one has to be more concerned about what the law says and less about who “wins” at any given moment.
When some carefully selected district court judge says that the Constitution requires federal funding for abortion, biological males in women’s sports, early release or no punishment for violent felons, no prayers or even American flags in classrooms, or some other legal nonsense, we are told to shut up because The Legal System will always right itself, cooler heads will prevail on appeal (two to seven years from now) and we don’t want to throw the baby out with the bathwater over one or ten or fifty bad decisions.
The leftist view of the judiciary has always been that if the voters fail to endorse enlightened candidates and policies that some elite body will discover that the preferred policy outcome had been in the Constitution all along and thus it must be imposed.
American legal training tries to instill the notion that litigation is a good thing, the value of lots of lawyering outweighs any societal cost. The old English model of loser-pays the cost of litigation was based on the idea that a dispute would never have made it all the way to trial unless one party was wrongfully resisting the truth of the matter. The more modern approach is to simultaneously believe that there really is no objective measure of truth and that an adjudicated outcome must be treated as a binding as if it were the truth.
The implicit professional bias that more process is always a good thing and that anything can be litigated may be a mortal threat to the required element of public confidence.
The arrogance on the system is also a flaw. There is a scene in the Grisholm novel The Rainmaker in which the judge wants to set a date for a hearing and asks all the lawyers present to check their calendars to decide on a date and the narrator of the story asks why is it that the parties and witnesses are never asked about their calendars. Once begun, litigation can take over lives and events.
In his History of American Law, Lawrence Friedman opined that despite the modern concerns about a litigation explosion, earlier generations of Americans probably sued more often and had more contact with the courts. Lots of people seeking redress for very specific actions by specific other parties (and of course, suing deep-pocket railroads in local courts for throwing sparks or hitting cows) rather than our more expensive modern system that by cost alone discourages that kind of case in favor of big-dollar disputes and class actions.
Thus endeth the rant.
“The Process Is The Punishment,” and while for the lawyers and judges etc it’s just another day on the job, for the other people involved their LIVES may be at stake even if it’s not actually a death penalty case or whatever.
One of my favorite parts of your rant. Well done.
It’s something to think about, but it’s not like a contract dispute over some percentage or a different percentage, is a question of “truth.”
And at the end, neither “truth” might actually prevail, it could be something else.
Take a look at the stories in the Innocence Project in which new DNA technology provided irrefutable but intensely resisted evidence of innocence. Making the system admit it made a mistake is an enormous undertaking.
https://ricochet.com/269458/the-true-meaning-of-marbury-v-madison/
Who can interpret the Constitution?
I see you are a fan of Sandy Alderson.
Alderson got what he wanted and was still stuck with Angel Hernandez.
Well, there is that.
The question of how to deal with the current illegal immigration mess created with malice aforethought (and in my view that is a point that is inarguably correct) by the Biden administration has already gone to the voters, and the voters decided in Trump’s favor. The federal courts, including immigration judges, don’t like the political outcome and appear dead set on thwarting the will of the voters. It appears that the Supreme Court has never heard of the political question doctrine. THe Court doesn’t care for election outcomes it doesn’t like and apparently intends not only to fight the Executive, but to disenfranchise all of us pesky, ignorant, and miscreant citizens out here.
The Chief Justice disagrees….he only wants to call balls and strikes. He thinks the Constitution is a game. And the role of the Courts is an umpire role only. No Justice here. Just balls and strikes. Call ’em as he sees ’em. With a little bias in any given direction on any given day. Depends on who is playing.
That view of the role of the courts started with Oliver Wendell Holmes, Jr, in his lectures on the Common Law, and was a complete departure from English common law, that saw itself as operating under a Constitutional Monarchy as a Christian nation that should strive for Justice, attempting, but never succeeding, in approaching the ultimate Justice, despite our fallen state. John Adams understood that. Our current federal judges do not. THey have eliminated Deity from consideration. And both Justice and Mercy have disappeared from our jurisprudence. God help us.
This court sent the abortion debate back to the states and halted efforts to make Donald Trump’s candidacy a legal question beyond the reach of voters rather than a political one.
They’ve at least heard of it.
How soon they forget…