A TEXTUALIST METAPHOR-PLAY BALL!

A story in the March 31, 2008 edition of the Dowagiac Daily News reports on a recent speech given by Justice Clifford Taylor at the Cass County Republicans' Lincoln Day dinner at the Edwardsburg American Legion Post 365. Justice Taylor, a textualist, described his perception of the role of judges with a baseball analogy. Judges should be umpires calling balls and strikes--not pitchers putting spin on the ball, so says Michigan's Supreme Court Chief Justice.

The article, written
by John Eby, states:

"As a strict constructionist, Taylor believes the role of a judge is not to make policy, but to interpret the words of the constitution or the statute at issue and interpret them by fairly reading the language."

Head Umpire Taylor's baseball metaphor is an apt one, but not for reasons he might appreciate.

A baseball umpire calls balls and strikes. Ball in the strike zone, strike. Ball out of the strike zone, ball. Plain and simple, according to Justice Taylor, black and white. Words in statutes are easy to read. Read them, decide the case. Plain and simple. Black and white. No "spin". No problem.

But let's take a look a baseball umpire and the strike zone. According to Major League Baseball, the strike zone is:

"The Strike Zone is that area over home plate the upper limit of which is a horizontal line at the midpoint between the top of the shoulders and the top of the uniform pants, and the lower level is a line at the bottom of the knees. The Strike Zone shall be determined from the batter's stance as the batter is prepared to swing at a pitched ball."

So, the size of the strike zone is different for every player, and is different for any player depending on his stance. Batter changes his stance, his strike zone changes.

The strike zone is invisible. Its dimensions can't be seen, even by the umpire.

The judgment of the umpire as to what is or is not a strike can't be reversed by anyone, no matter how loud they complain.

And, finally, any pitch, even one with "spin", that is in the strike zone should be a strike.

While Justice Taylor would have us believe that the meaning of words he interprets, like the strike zone, is absolute and unchangeable, that really is not true. Though the rule establishing the strike zone is simple English, the dimensions of the strike zone are perceived to be different in the American League than in the National League.

And, Roger Clemens, one of the great pitchers has said that the size of the strike zone has changed during his career, even though there has been no rule change. Clemens recently said:

“Pitches that were strikes when I first started (in 1984) have been balls after the mid-‘80s,” Clemens said. “Hitters started laying off high pitches. Umpires stopped calling them. Back then a high breaking ball was a real bad pitch because hitters were looking up there. Now you miss up and hitters just relax."

So, I agree with Justice Taylor. He and the current majority of the Supreme Court are indeed like baseball umpires. The principles that guide their decisions change with every case, are impossible for the average litigant to see or perceive, and the exercise of their judgment is not subject to challenge. And, they are free to change the meaning of words without changing their definitions. All this while saying that they are just following the rules.

It would not be a bad thing if the Michigan electorate, come November, told Mr. Umpire Chief Justice Taylor: "Yer Outta Here!"