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Umpires Are For Games, Judges Are For Judging

June 30, 2010

Chief Justice John Roberts’ umpire analogy has a really nice ring to it. It’s simple and comforting, implying that the decisions made by the Supreme Court are simple enough that ESPN’s K-Zone technology could probably do as good a job as the decorated Justices of the Court. And it appeals to our sense of fairness in a way that makes it impossible to disagree with on its own terms. Obviously, when the decisions are as simple as balls and strikes, that’s what we would expect from our judges.

The truth is, however, that the analogy doesn’t actually apply in any meaningful way to being a Supreme Court justice. The Supreme Court only takes cases where the strike zone isn’t clear. If you carried the analogy to its logical end, you’d have to say that Supreme Court judges make their own strike zone.

Thankfully, there has been some pushback against Roberts’ depiction of a judge’s task recently. First, recently retired Justice David Souter explained in the Harvard commencement speech this year that the ‘fair reading’ method of constitutional interpretation had “only a tenuous connection to reality” in part because the Constitution contains “contains values that may well exist in tension with each other.” Today, in her testimony before the Senate Judiciary Committee, nominee Elena Kagan partially rejected the analogy, saying that it could “suggest that the law is a robotic enterprise.” Senators Feinstein and Feingold also criticized the analogy. Hopefully it’s the start of a trend.

One Comment leave one →
  1. The Center Square permalink
    June 30, 2010 3:53 pm

    It’s only a descriptive analogy, so it doesn’t hold up perfectly. But still I think Roberts’ notion is more useful than you argue here.

    For one thing, his umpire comment was about judges in general, not merely the Supreme Court. As you get down to the district court level, it becomes more and more appropriate to consider that there is a established and known “strike zone” which should guide federal judges. For example, federal criminal cases are subject to a standardized set of sentencing guidelines.

    At the Supreme Court level, I think the analogy retains validity. Essentially, Roberts is saying it is one thing to define what a strike is, and it is another thing to decide if a given pitch meets that definition — and that the courts should strive to limit their undertaking to only the latter. Even in the challenging and complex cases that reach the SCOTUS, that is an appropriate and correct distinction. Maybe it’s like trying to umpire the pitch without being able to see the batter or home plate *lol*.

    Thanks for letting me comment.

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