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.