Some Thoughts on Engaged Judging

Authors

Eric Smith

Date of this Version

2019

Citation

Court Review - Volume 55

Comments

Used by permission.

Abstract

Chief Justice John Roberts famously described the role of a judge as that of a baseball umpire, passively calling balls and strikes.² This model has been substantially and accurately criticized, especially in the context of state court adjudications, where the litigants often do not have legal representation.³ That criticism, however, has focused primarily on procedural remedies, tied to the notion of an “active” or “engaged” judge⁴ as a means of improving the ability of the adversary system to deliver justice.⁵ In this article, I suggest that while this notion is important, it is incomplete, for a judge (in state court at least) is faced with a complex web of problems to solve, problems that in appropriate cases require not just a facilitator but a willingness to step outside the adversarial mode and to move the parties toward resolving issues in the context of the non-jury hearings⁶ the judge conducts.⁷