If you ask anyone why they go to sports games, the excitement of watching the officials is the last answer you’d expect. Officials don’t score touchdowns or goals. They don’t pull off double plays or miraculous catches. They merely enforce the rules.
Of all the aspects of a sport, the rules are the most boring and, yet, the most critical.
The true beauty of watching sports is seeing who can perform the best while honoring the rules. No serious fan wants to watch a football game where the defense can always rush before the snap or a basketball game where players don’t have to dribble.
Rules may not create the excitement of a sport, but they do protect it. That is why we want our umpires and referees to do one thing and one thing only: properly enforce the rules.
This can be difficult to appreciate. In the last seconds of a championship game when a close call will hand our team a victory or loss, it is the victory or loss that will dictate our response, not whether the call was actually correct. As understandable as this is, we all know the integrity of the sport depends on the latter.
When we bring heated conflicts to the Supreme Court, its final decision provokes a similar response. We deeply want the outcome we believe is right. We want our side to win.
For example, on the morning the Hobby Lobby decision was released in 2014, Planned Parenthood CEO Cecile Richards immediately voiced her criticism: “This is a deeply disappointing and troubling ruling that will prevent some women, especially those working hourly-wage jobs and struggling to make ends meet, from getting birth control.”
The court’s decision on Obamacare in 2015 triggered similar knee-jerk reactions from GOP candidates, including Sen. Rand Paul, who said, “This decision turns both the rule of law and common sense on its head. Obamacare raises taxes, harms patients and doctors, and is the wrong fix for America’s health care system.”
These two arguments center on the outcomes. Did the court help secure contraceptive insurance coverage for women? Did it help the GOP repeal Obamacare? Which side won?
When we focus on the outcome of a decision instead of the reasoning behind it, we lose sight of something critical. The reasoning is what tells us whether the decision interpreted the law correctly. That is the job of a justice, to interpret and apply the law correctly.
This principle could not be more important today. Our Senate is about to decide whether to confirm Judge Neil Gorsuch as a Supreme Court justice. Shortly after learning about his nomination, I was reminded of the sports-fan mentality when I read a Facebook post from Sen. Cory Booker, who had this to say:
“I will be opposing Neil Gorsuch, President Trump’s Supreme Court nominee, every step of the way as his nomination moves through the Senate. Requiring 60 Senate votes is not something new for Supreme Court nominees to overcome. It helps ensure that presidents seek nominees whose views are in the mainstream. And make no mistake: Judge Gorsuch is out of the mainstream. So much of our Constitution is about protecting individual rights — yet Trump’s Supreme Court nominee is somebody whose record shows he chooses the big and powerful over the rights of everyday Americans. Trump has nominated somebody whose legal decisions seem to push back on disability rights, push back on women’s rights, push back even on worker’s rights and free speech rights. For instance, in one case he sided with corporations against people speaking out against dangerous working conditions.”
This argument beautifully exemplifies the way we often scrutinize judges. It fixates on views and outcomes. Booker’s “mainstream view” test appeals to a belief that Gorsuch’s views should have some minimum level of popularity. Booker then argued that Gorsuch “seemed to push back” on certain rights in his prior cases. In other words, he sized up a judicial candidate with a vague description of what his legal decisions “seemed” to do.
Booker is not alone in making these mistakes. We all do it. The moment we detect a judge’s “liberal” or “conservative” odor, or catch a brief glimpse of how a judge’s decisions impact our agendas, we make up our minds.
But this cannot be the way we decide who sits on the Supreme Court. Why? Because a judge decides what the law says; a judge does not decide what the law should say.
In our democracy, we create laws through our legislature. The court, in turn, applies these laws. We don’t like it when the court enforces the laws we oppose, but we accept it as the price of living in a society where we can have a say in which laws are passed.
To make the right decision on whether to confirm Gorsuch, we have to ask the right questions. Whether his personal views are in the “mainstream” is not the right question; the right question is whether he will ensure that his personal views do not compromise his ability to correctly interpret and apply the law.
Whether he will advocate for disability rights, women’s rights, workers’ rights or free speech to the furthest possible extent is not the right question; the right question is whether he will protect these rights as he is required to by the laws we created.
More simply put, will Gorsuch use the right approach to interpreting and applying the law? That is who we need on the court, a justice who focuses on making the correct calls rather than helping one side win.
Kyle Triggs, of Sartell, Minn., is an attorney.