The Umpire Always Takes a Side: America's Perpetual Fantasy of Judicial Independence

The Shock That Never Gets Old

In 1937, Franklin Roosevelt announced his court-packing plan with the righteous indignation of a man discovering corruption for the first time. The Supreme Court had struck down key New Deal programs, and FDR declared war on what he called the "nine old men" who were blocking the will of the people. His supporters rallied around the idea that a politicized judiciary was undermining democracy itself.

Sixty years later, Democrats would invoke the same language when decrying the Bush v. Gore decision, claiming that partisan justices had stolen an election. Republicans had used identical rhetoric during the Warren Court era, when Chief Justice Earl Warren's liberal majority revolutionized civil rights law. Today, both parties alternate between celebrating judicial independence when courts rule their way and denouncing judicial activism when they don't.

The pattern is so predictable it might as well be written into the Constitution: Americans want desperately to believe in neutral arbiters, then react with genuine surprise when those arbiters prove to be human beings with worldviews.

The Founding Myth of Black Robes

Alexander Hamilton sold judicial review to a skeptical public by promising that judges would be "bound down by strict rules and precedents." In Federalist 78, he painted a picture of mechanical jurisprudence where legal outcomes flowed inevitably from constitutional text. The judiciary would be the "least dangerous branch" precisely because it would exercise "neither force nor will, but merely judgment."

This was either naive or deliberately misleading. Hamilton himself had been a practicing lawyer. He knew that legal interpretation involves choices, and choices reflect values. Yet the myth of mechanical jurisprudence became foundational to American civic religion because it solved a fundamental problem: how do you give unelected officials the power to overturn the decisions of elected ones without creating a shadow aristocracy?

The answer was to pretend they weren't really making decisions at all—just discovering what the law already said.

The Cycle That Never Breaks

Every major constitutional crisis follows the same script. First, a court hands down a controversial decision. The losing side denounces judicial overreach and calls for reform. The winning side defends judicial independence and warns against political interference. Then the court's composition changes, the decisions flip, and the roles reverse perfectly.

Consider the arc from Lochner v. New York (1905) to West Coast Hotel v. Parrish (1937). For three decades, the Supreme Court struck down economic regulations in the name of constitutional liberty, and progressives raged against judicial tyranny. When the court finally reversed course and began upholding New Deal programs, conservatives discovered their own passion for judicial restraint.

The Warren Court era repeated the pattern in reverse. Liberals who had spent decades attacking judicial activism suddenly found virtue in an expansive reading of constitutional rights. Conservatives who had defended broad judicial power during the Lochner era now preached the gospel of strict construction.

The Price of Pretending

The fantasy of judicial neutrality exacts a real cost. Because Americans refuse to acknowledge that courts make political choices, they can't have honest debates about what kinds of political choices courts should make. Instead, every confirmation hearing becomes a theater of evasion where nominees pretend they'll just "call balls and strikes" while senators pretend to believe them.

This ritualized dishonesty prevents the kind of substantive discussion other democracies have about judicial philosophy. When the German Constitutional Court issues a controversial ruling, German politicians debate whether it was correct on the merits. When the U.S. Supreme Court does the same, American politicians argue about whether the justices followed proper procedure—as if procedure could be separated from substance.

The pretense also makes every major decision feel like a betrayal. If judges are supposed to be neutral umpires, then any politically consequential ruling suggests corruption or incompetence. This feeds the cycle of crisis and reform that has plagued American constitutional law since the beginning.

The Load-Bearing Lie

Yet the myth persists because it serves a crucial function. Democratic legitimacy requires some institution that can credibly claim to stand above partisan politics, even if that claim is largely fictional. The alternative—openly acknowledging that unelected judges make political decisions—might be more honest, but it would also undermine the court's authority to resolve the constitutional disputes that elected officials can't or won't address.

This explains why even sophisticated observers continue to speak of judicial independence as if it were achievable rather than aspirational. The fiction may be transparent, but it's also necessary. Without it, the Supreme Court would be just another political institution, and the Constitution would lose its status as higher law.

The Next Act in an Old Play

Today's battles over judicial nominations, court packing, and term limits are simply the latest performance of a script written in the 1790s. The specific issues change—abortion rights instead of economic regulation, voting rights instead of railroad rates—but the underlying dynamic remains constant. Americans demand neutral arbiters while creating political institutions to select them.

The pattern will continue because the underlying tension is built into the system. As long as the Constitution requires interpretation, and interpretation involves choice, and choice reflects values, judges will make political decisions while pretending not to. And Americans will continue to act shocked when they discover what everyone already knows: the umpire was never calling balls and strikes. He was always playing for a team.