There’s a story told about Joe McCarthy—not the right-wing senator from Wisconsin, but the manager of the great New York Yankees teams of the 1930s and ’40s. McCarthy dreamed that he had died and gone to heaven, where St. Peter told him to assemble an all-star team. McCarthy was excited: he’d have Christy Mathewson and Walter Johnson, Honus Wagner, Lou Gehrig. Just then, the phone rang. It was Satan challenging McCarthy to a game. “You haven’t got a chance of winning,” McCarthy exclaimed. “I’ve got all the players.” “Oh, I know that,” Satan answered. “But I’ve got all the umpires.”

The umpire can have a huge impact on how the game turns out, as the Supreme Court’s self-described umpire-in-chief, John Roberts, has shown. But the chief justice ignores this when he celebrates the fact that today’s Court is the first without even a single justice who has served in elective office, claiming that drawing on the lower courts for justices—as opposed to drawing on Congress, governors’ offices, and the Cabinet—has shifted the Court from “fluid” considerations of “policy” to the “more solid grounds of legal argument.” In the Affordable Care Act cases, where the Court narrowly upheld the individual mandate while imposing new and potentially significant limitations on Congress’s commerce and spending clause powers, he wrote that the Justices

possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

But given how much judges influence policymaking, one of the most important consequences of the people’s political choices is the composition of the courts themselves—and not just the Supreme Court. This past term, the Supreme Court issued opinions in 65 cases after oral argument, the fewest since 1953–4, when it decided Brown v. Board of Education. But the federal courts of appeals disposed of more than 57,000 cases in the year ending last September, and the federal district courts of more than 300,000. The judges serving on these lower courts have tremendous leeway on a range of matters, from sentencing individuals in federal criminal cases to determining whether a plaintiff’s claim of discrimination is plausible enough to proceed to discovery and trial. Federal laws and policies concerning everything from consumers’ rights to privacy to labor protections are enacted by our nation’s elected leaders, yet they often are only as effective as the judges who apply them, case by case.
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