07/09/2012 03:00 pm ET | Updated Sep 08, 2012

Chief Justice Roberts Did Not 'Call Balls and Strikes' in His Health Care Decision

In his Senate hearing Chief Justice Roberts said: "I will remember that it's my job to call balls and strikes and not to pitch or bat." In upholding the Obama health care legislation he didn't hit a home run, but he bunted in the win. In doing so, many claim he made an error, and in his commerce clause ruling, left a number of issues on base. OK enough of baseball metaphors! Although I do not agree with all of his reasoning, I do agree with the result, but it certainly did not come from "calling balls and strikes." I rise to the Chief Justice's defense nonetheless.

What the public does not understand is that cases that reach the Supreme Court and the Appellate Courts do not involve issues where there is a clear winner and loser -- a right and wrong position. Quite to the contrary, most cases that reach those courts require the judges to choose between two "right" positions, either of which is defensible and supportable. Witness the number of divisions in the decisions. If there were a clear right decision, a computer system could be devised to spew out the correct answer -- so "balls and strikes" it ain't!

What tilts the scale for judges and justices is their personal judicial philosophy. That judicial philosophy is not the result of some blind adherence to a conservative or liberal position, but rather the result of years of personal and professional experiences. It does not result in ignoring the law and facts, but rather affects how they are perceived. A judge who has experienced racial or sexual discrimination is likely to be more sensitive to those claims. I can honestly say that when I first went on to the district court I had absolutely no judicial philosophy -- as least not one of which I was aware and determined to pursue. But as cases were presented to me I began to develop a sense that I was there to protect individual rights and liberties. I do not think I had a bias, but rather a growing awareness of what was really happening in the world around me and how the law could serve to protect those who needed and deserved it. If that made me a "liberal" -- so be it.

Much has been speculated about the Chief Justice's supposed change in position; that he abandoned his own judicial philosophy and the expectation of those who appointed and supported him. Any appellate judge will tell you that there are some decisions "that just won't write". A judge will vote for a particular outcome, be assigned the opinion, and then find that he or she is unable to support the outcome and switches sides. We do not know if it happened here, but if it did the Chief is to be admired, not condemned, for his integrity, even if "he took one for the team" (baseball again!) Recognizing that both sides had merit, he may have chosen the side that preserved the honor and integrity of the Court, recognizing that holding the legislation unconstitutional would have confirmed the public's view of a purely political Supreme Court.

In so doing he may have disappointed the expectations of many of his supporters, but in the choice for the Supreme Court between conservatism and integrity, he properly chose integrity.

Note: My thanks to Howard Fineman for suggesting this topic for my blog.