In Men at Work:The Craft of Baseball, George Will quipped that "Umpires would be natural Republicans — dead to human feelings." Chief Justice John Roberts turned the joke inside out during his Oprah-soft confirmation hearings."I will remember to call balls and strikes and not to pitch or bat," John Roberts told the Senate Judiciary Committee in September of 2005. Roberts' faux-humble analogy was supposed to allay fears moderates and liberals might have about his background in the Reagan justice department, his time as President George H. W. Bush's Primary Deputy Solicitor General, and his conservative opinions as a judge on the US Court of Appeals for the DC Circuit.

Roberts hit a homerun. Coming off the nakedly political Harriet Miers nomination, even left-leaning Supreme Court commentators were won over by Roberts' playing-catch-in-the-backyard act. Perhaps they were shocked that President Bush nominated somebody competent, not one of his usual Gonzo/Brownie caliber cronies. In any case, surely such a nice, humble guy like John Roberts couldn't be the Federalist Society's Barry Bonds, ready to step up to the plate and mash every progressive holding from Brown v. Board of Education to Lawrence v. Texas into a judicial McCovey Cove, his performance enhanced by the steroidal energy of the anti "activist judges" right wing movement. Roberts looks like he'd play hooky from judging to take his son to Opening Day, and maybe catch him a foul ball while holding a box of Cracker Jacks.

After three days of baseball metaphors, the Senate Judiciary Committee approved Roberts' nomination, with Democrat Herbert Kohl of Wisconsin apparently won over by the prospect of Americana-themed jurisprudence: "I vote my hopes today and not my fears." Unfortunately for liberals and moderates, Roberts' first term as Chief Justice witnessed the emergence of a conservative majority more powerful than the 1928 Yankees. Roberts wrote the majority/plurality opinions that invalidated two school districts' desegregations plans, a plurality opinion rolling back the power of the EPA to enforce environmental regulations, and a majority opinion that severely limits the free speech rights of students ("Bong hits 4 Jesus"). There's more where those came from. This term, expect Roberts to vote to deny detainees access to courts, to reinstate a de facto poll tax by requiring a photo ID to vote, and to uphold the 100-to-1 crack/cocaine sentencing ratio — in other words, vote right alongside Antonin Scalia and Clarence Thomas, the Ruth and Gehrig of conservative justices. Somehow, though, where Robert Bork came off as a judicial Earl Weaver, John Roberts made himself out as a Durocherean nice guy who finished first in his law school class at Harvard. One wonders how, exactly, Roberts managed to pull off this "I'm just a lowly umipre" act.

The power of Roberts' umpiring metaphor is that it evokes plain-spoken common sense — a Rockwellian portrait of judicial philosophy that not only plays to conservative values, but is kinder and gentler than the Sopranos-style judicial wackings of Antonin Scalia. Roberts might as well have Photoshopped his face onto Rockwell's Three Umpires and set it on an easel right there in the hearing room: "Senator Feinstein, as a judge, all I know is that it doesn't make any sense to play baseball in the rain." Roberts gave us judicial minimalism for the Bull Durham philosopher.

As someone who's both clerked for a judge and umpired baseball, I can tell you that this is bullshit of magna cum laude rank. First, in both law and baseball, the rules are rarely clear when applied to the action on the field. The Major League Baseball Official Rules says that 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 hollow beneath the knee cap," as judged when the batter takes his normal stance, not when the ball crosses the plate." Umpires would never admit it, but the truth is that you're never 100 percent sure that 12-to-6 curve ball at 80+ mph dropped into the zone.

Despite Ques-Tec, the strike zone is inherently uncertain, so umpires necessarily develop philosophies about how to call balls and strikes. Some umpires are more liberal (Eric Gregg ringing up Fred McGriff to end Game 5 of the 1997 Marlins/Braves NLCS is the Miranda v. Arizona of activist strike zones). Others squeeze pitchers to a pulp: "Cowboy" Joe West not only employs a strike zone the size of a coffee can (albeit a floating coffee can), but has a Scalian reputation for sparring with players, like when he bodyslammed Phillies pitcher Dennis Cook in 1990.

Because the exact location of the strike zone depends on the umpire, pitchers calibrate their game plans to who's behind the plate. If Greg Maddox takes the hill and Ed Runge has the dish, hitters better swing at calf-high sliders an inch off the black. Lawyers do the same thing:If Solicitor General Paul Clement is facing a probable 5-4 school integration case, he's going to pound the Anthony Kennedy strike zone over the inside-right corner — but not off the edge, in the Scalia/Thomas wheelhouse.

Second, even if we understand that Roberts isn't discounting the necessity of "interpreting" the strike zone, his analogy really only applies to trial judges — not Supreme Court justices. In the federal system, trial judges are the district court judges who slog through daily dockets and weekly trials. They take pleas from drug dealers, hear summary judgment motions, referee discovery fights between corporate counsels, etc. If a case makes it to trial, district court is where it's conducted, in all its messiness.

Rather than umpiring, with its crisp, did-it-or-didn't-it safe/out, balls/strikes calls, trial court judging is more like a head linesman in football refereeing line play. The official could call holding on every play if he wanted to. Just like in every court case, somebody did something wrong, and more often than not, everybody did something wrong. Like an official who has to decide whether the holding affected the play enough to warrant throwing the flag, a trial judge has to make the judgment call about, say, whether evidence of a drug dealer's previous firearms conviction is "relevant" or "prejudicial" according to FRE 401 and 403.

The Supreme Court is more like the NFL Competition Committee: It interprets the NFL Rule Book for game officials and instructs them on how to call the game. In making its judgments, the Committee answers the bigger, more philosophical questions about how the game should be played. For example, after the New England Patriots secondary mugged Indianapolis Colts receivers during the 2003 AFC Championship Game, the Committee issued "points of emphasis" to its officials, instructing them to penalize nearly all contact more than five yards beyond the line of scrimmage — in other words, the Committee construed the rule strictly as written, using their authority to compel officials to call contact in the secondary more tightly.

This changed the game dramatically. The Committee not only interpreted the rule book for game officials, it made a philosophical judgment that more offense would be good for NFL (contrast this strict rule interpretation with how loosely offensive holding is called). Since the change, Colts receivers have had much more space for Peyton Manning to throw the ball, and he's put up some of the biggest offensive numbers in NFL history. Without the change in rule interpretation, the Colts wouldn't have as dominate an offense, and they may not have won the Super Bowl last year.

This is what the Supreme Court does, but with the Constitution, not the NFL Rule Book. The interpreters of the rules can completely change not only the outcome, but how the game is played. This is why judicial philosophy matters: Even Harriet Miers can call it like she sees it, but the Supreme Court is in the business of making and interpreting the law — making judgments, not rulings. These are necessarily philosophical questions, so it's not enough to say that you'll just "be fair" and try to call a good game. Judges try to be "fair," just like all (ok, most) officials try to call a good game. But it's the instructions they get from above that tell them when to flag an illegal hit, or whether an environmental group has standing to challenge an EPA ruling.

Essentially, John Roberts' simple, elegant little analogy purposefully confuses what the Supreme Court actually does. Judicial philosophy matters far more than whether a justice is "fair." What matters is not only the outcome, but the rules and standards used to get to the outcome. This is why the debate over judicial philosophy matters, and why John Roberts' strike zone analogy isn't just bullshit, but a conscious manipulation. Surely John Roberts knows that "fair" has little to do with Constitutional interpretation. Just ask minority school children in Jefferson County, Kentucky, the Ohio inmate who didn't get to file his appeal even though he followed the judge's orders, or the woman who didn't file her wage discrimination suit within one hundred eighty days of her first discriminatory paycheck (not after she actually discovered the discrimination), whether the Roberts Court is "fair."Just the same, though, you could ask the advocates of fetuses whose skulls were crushed during an IDX late-term abortion, the families of a murder victim who was thrown off a bridge by a seventeen year old, or the Liberty Counsel whether, say, Justice Ruth Bader Ginsburg is "fair."

Roberts' truthiness bamboozled even legal commentators into focusing on his "fairness" and "competence," not the important question of what kind of justice he'd actually be. Sometimes you have to tip your cap to the other team, which is what most left-leaning legal columnists did after the confirmation. Some praised Roberts as a "conservative but fair" judge. Others acknowledged that he was conservative, "but not ideological." Still others pointed out that the President has the prerogative to shape the court as he likes, and no one is more qualified than John Roberts.

This, of course, completely misses the point. Roberts' ruse is the culmination of a bad precedent set by Senate Democrats during the confirmation hearings of the aforementioned Ruth Bader Ginsburg. During her hearings in 1993, Ginsburg refused to answer several questions about her judicial philosophy, about how her advocacy for social causes would affect the way she interprets the Constitution as a justice. Since then, there's been an unspoken understanding about confirmation hearings: Nominees could simply not answer tough, relevant questions about judicial philosophy and personal politics under the guise that it would compromise their "impartiality."

The reality is that this silence is a gentlemen's agreement that the president, of either party, has the prerogative to shape the Court to meet his political ends, without necessarily looking for a qualified moderate candidate or a brilliant, worthy jurist. As for the justice himself, he is bodyguarded from attacks by well-funded and well-mobilized special interest groups. Still, what Roberts has done is worse: He not only didn't answer questions, he has willfully misconstrued to the American people what his job actually is.

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