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12 chapter two
1 joined the fight. Most notable, within a year and a half of the Fifth Circuit
2 decision in Emerson, gun rights advocates had filed two separate consti-
3 tutional challenges to the District of Columbia’s near- total ban on the
4 private possession of handguns.
5 Contemporary judges regularly compare themselves to umpires, sug-
6 gesting that their job is simply to enforce the legal rules as written, with-
7 out regard to who wins or loses. As Roberts himself put it in his opening
8 statement to the Senate Judiciary Committee in September 2005:
9
10 Judges are like umpires. Umpires don’t make the rules, they apply them. The
11 role of an umpire and a judge is critical. They make sure everybody plays by the
12 rules, but it is a limited role.
13 Nobody ever went to a ball game to see the umpire. . . . I have no agenda,
14 but I do have a commitment. If I am confirmed, I will confront every case with
15 an open mind.
16 I will fully and fairly analyze the legal arguments that are presented. I will be
17 open to the considered views of my colleagues on the bench, and I will decide
18 every case based on the record, according to the rule of law, without fear or
19 favor, to the best of my ability, and I will remember that it’s my job to call balls
20 and strikes, and not to pitch or bat. 6
21
22 In a subsequent interview with Jeffrey Rosen, conducted at the end of
23 his first term as chief justice, Roberts noted that his model for judging as
24 umpiring would be his greatest predecessor, Chief Justice John Marshall.
25 The principal theme of the interview was Roberts’s determination to per-
26 suade his colleagues to behave in a less polarized fashion, and his exem-
27 plar for this effort was Marshall. Rosen observed that “resist[ing] the
28 politicization of the judiciary [seemed a] daunting task,” but that Roberts
29 “view[ed] it . . . as a ‘special opportunity,’ especially in our intensely polar-
30 ized age. ‘Politics are closely divided,’ [Roberts] observed. ‘The same with
31 the Congress. There ought to be some sense of some stability, if the gov-
32 ernment is not going to polarize completely. It’s a high priority to keep
33 any kind of partisan divide out of the judiciary as well.’” To succeed in this
34 task, Roberts would have to persuade each of his colleagues (and himself)
35 “to suppress his or her ideological agenda in the interest of achieving con-
36 sensus and stability” (Rosen 2007).
37 This is where Marshall comes in, with Roberts emphasizing the great
38 chief justice’s “willingness to disappoint his ideological supporters. . . . [E]
39 ven if Marshall had the votes to push the Federalist agenda harder than he

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