Judges are often not like umpires at all

A faithful anonymous reader suggests I "cherry picked" from Jefferson County Circuit Court Judge Randy Koschnick's weekend interview with WISN-TV's Mike Gousha. Well, yeah, I guess I did.* Probably because there really wasn't all that much else to it.

Except perhaps Judge Koschnick's reiteration of an expression that seems to have insinuated itself into the vernacular of judicial politics in the wake of U.S. Supreme Court Chief Justice John Roberts's remarks during his Senate confirmation hearings in 2005.

"Judges are like umpires," Roberts told the Committee on the Judiciary. "Umpires don't make the rules; they apply them."

(He said this immediately after assuring the Committee, "Judges are not politicians who can promise to do certain things in exchange for votes." Maybe that claim applies to the federal system, in which judges are appointed by the president but not here in Wisconsin, where even justices of the State Supreme Court are elected following often highly politically charged campaigns.)

But judges do make the rules. Here's a fairly obvious and controversial example, from the pen of one of the most "conservative" judges in the country, Justice Antonin Scalia:

[G]enerally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest.

That's the rule made by the Court in Employment Division v. Smith. Smith was an adherent of the Native American Church, one of whose sacraments is the ingestion of peyote, a hallucinogenic cactus blossom which is otherwise illegal — a controlled substance.

Smith got fired from his job and was later denied unemployment benefits by the State of Oregon because his dismissal was based on the "misconduct" of having eaten peyote.

As taking peyote was a sacrament of his church, Smith argued that his right to free exercise of religion guaranteed by the First Amendment was violated, since Oregon had deemed his religious practices misconduct by way of denying his UI benefits.

Because the Constitution doesn't give any direction as to how to proceed when someone claims such a violation, the Supreme Court makes the rules governing how the lower courts (and itself, for the fans of stare decisis) should go about evaluating such claims.

According to Justice Scalia, the government may make and enforce laws burdening your claimed right to freely exercise your religion so long as the law in question is potentially applicable to any person and otherwise neutral with respect to religion.

If the government manages to meet both of those criteria, then the government needn't additionally demonstrate a "compelling interest" when it goes about enforcing — or even simply defending — the law.

("Compelling interest" refers to yet another set of rules the Court has devised which it uses to evaluate laws in the Constitution's light.)

That rule defines — to extend Chief Justice Roberts's baseball simile — the dimensions and parameters of the strike zone.

And that is the rule made by Justice Scalia and his colleagues. It doesn't appear anywhere in the text of the First Amendment or elsewhere in the Constitution. Nor do many, many other rules made by all manner of judges from "strict constructionist" to "activist."

So, Anonymous 10:27, Stee-rike two.

* At least, according to an overly generous definition of cherry picking. Because that's just the kind of guy I am.