The NFL and the Limits of Legal Formalism

Recent Supreme Court confirmation hearings featured the metaphor of judges acting as umpires calling "balls and strikes." John Roberts famously used this metaphor during his hearing as the ideal judges that should aspire to. Elena Kagan was asked about the "balls and strikes" language during her confirmation hearing. While condoning certain aspects of the metaphor -"judges have to be neutral and realize they are not the most important people in our democratic government"- she emphasized its limits and endorsed some traditional notions of jurisprudence. Kagan was perhaps trying to reframe the misleading rhetorical divide between empathetic liberal jurisprudence and conservative jurisprudence focused on hard-line rules. Law, she said, is not a robotic enterprise, but "it's law all the way." In making decisions, judges incorporate precedent, text, structure, history, "law and only law."