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Tuesday, August 05, 2008

More against the Judge-Umpire Analogy

Some recent discussion of the analogies between judges and umpires (or other sports officials) over the past few days at the Volokh Conspiracy (here, here, here, and here) and Erike Lilliquist at CoOp (here). Ilya Somin calls the analogy "a good shorthand way of emphasizing the judge's duty to set aside his policy preferences and be impartial between litigants."

I continue to believe that the analogy is worthless. First, Ilya defends it as shorthand for decisional neutrality and impartiality, responding to a particular use of the analogy by Fifth Circuit Judge Jerry E. Smith (Ilya's former judge) to explain why judges should not call balls and strikes based on which team is his favorite. But while true, we do not need the analogy for that--it seems obvious that no decisionmaker should reach conclusions based on the identity of the parties rather than the applicable rules.

Second, my disagreement with the metaphor is not that umpiring is simple and obvious while judging is complex and demands interpretation. As Ilya and Erik (in an very detailed post) both point out, there are all sorts of ways in which sports officials exercise a lot of discretion. This is especially true of choices between enforcing rules as written or in a more practical manner grounded in the game's realities and evolution and in applicable "unwritten" (Common Law?) rules that have become part of the rule set (Erik uses examples of the "neighborhood rule" on tag plays and double plays in baseball). So the analogy really becomes "a judge is like an umpire/referee because both must make difficult decisions, often requiring the exercise of discretion and the accumulation of different legal authorities, and must develop an interpretive methodology for doing so." But if that is it, then the analogy again does no work. Why are sports officials particularly illustrative of this principle, as opposed to any other decision maker? I could say the same thing about my decision whether to give my daughter a time-out.

Ultimately, the analogy (at least as used by Chief Justice Roberts in his confirmation hearings, the most recent and well-known use) is based on a (deliberate, I think) oversimplication of umpiring--the notion that an umpire "simply" calls balls and strikes and it is obvious which is which--and an effort to make judging look similarly simple and straightforward. Thus, the analogy is worthless precisely because judging and umpiring are both complex, interpretive endeavors. The analogy is accurate but it serves no meaningful illustrative or rhetorical function.

Posted by Howard Wasserman on August 5, 2008 at 08:00 AM in Culture, Legal Theory | Permalink


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So you take Roberts comment meaningful in that he was espousing the role of a judge as deciding cases narrowly to achieve substantive fairness in a discrete case (see e.g. White, Kennedy, O'Connor) rather than writing/rewriting the rules for a particular case and future cases (see e.g. Scalia). On brief reflection that does seem to be how Roberts has approached his leadership of the court.

Posted by: NYesq | Aug 6, 2008 5:07:06 PM

That is exactly why I believe the analogy fails--umpires do, in miniature, a version of what Roberts seems to be rejecting as the role or approach of judges. They try to ensure the fairness and proper ("just"?) functioning of the game and its consistency with the game's broader values beyond the written rules (which, contra Lawyer's comments, are not the same as constitutional or even societal values, such as equality). So if Roberts wants to argue against some judicial role, make that argument. But without using an inaccurate analogy that gives him an inaccurate rhetorical and political advantage.

Posted by: Howard Wasserman | Aug 5, 2008 6:50:05 PM


Most academics I talk to who teach in the area of public law would reject the notion that the "role of the judge" is to resolve a legal dispute among parties and, in doing so, explain, apply, and elaborate on the rules that apply to that dispute. That's a part of the job, grated, but most lawprofs want judges to do more: They believe that the role of a judge is to ensure justice and to make sure our system recognizes and lives up to our societal ideals, above and beyond merely resolving disputes and applying preexisting rules. It's that broad role, very popular within legal academia, I think, that I take Roberts to be rejecting.

Posted by: Orin Kerr | Aug 5, 2008 5:27:05 PM


I can't help but find it a bit of an exaggeration to claim that umpires "consider policy goals, and unwritten customs, and the 'spirit' of the rules in deciding" outcomes. Because they really don't. Yes, the ejection of a manager is a judgment call, and there is flexibility between the required proximity in the time-honored "Neighborhood Play" rule. However these are clear exceptions to the multitude of hard and fast dictates of the game in which no "policy goals," "unwritten customs" or "spirit" arguments by managers are allowed. Could you imagine a manager arguing to an umpire that the size of the strike zone "makes us feel unequal"? Or that the tie-goes-to-the-runner rule should evolve with society's evolving standards of decency? Or that the infield fly rule should not apply, lest it become and "undue burden" on a baserunner?

Posted by: Lawyer | Aug 5, 2008 2:52:45 PM

Orin: Interesting angle, but it seems to me the analogy then really falls apart. True, people who go to a baseball game want to watch the players, not the umpires (a policy consideration that, as Ilya notes, often drives umpires in their decisions about whether to eject players for arguing). But who is the equivalent of the players within the judicial/political/legal system--and are people flocking to watch them?

The "role of the judge" is to resolve a legal dispute among parties and, in doing so, explain, apply, and elaborate on the rules that apply to that dispute. The "role of the umpire" is to do resolve a dispute among parties (was the runner safe or out at home) by applying (and sometimes, when challenged, explaining and elaborating on) the necessary rules. Sounds the same. Ultimately, I think the "role of the judge" point is inseparable from the "nature of judging" point.

Posted by: Howard Wasserman | Aug 5, 2008 1:49:33 PM


I recognize what Howard is saying: I'm suggesting that there is another meaning that Roberts also had in mind that is actually quite sensible that we are overlooking. Note how Roberts began his discussion of umpires: No one goes to a baseball game to watch the umpire, he explained. His reference began as a comment about the role of the judge, as much as not more as it was a comment about the nature of judging. I am suggesting that we can learn more from the comment by focusing on the role of the judge point than we can from the nature of judging point, and that if we do so the comment is actually quite meaningful.

Posted by: Orin Kerr | Aug 5, 2008 1:39:13 PM

Bruce: You are right. And I would go a step further to point out that the question of whether a pitch is a strike is more appropriately seen as a question of fact (or at worst a mixed question), more a trial-court than an appellate-court issue: When an umpire calls balls and strikes, he is not defining the strike zone; he is making a determination as to whether *this pitch* passed through that strike zone (however defined).

Orin: Ilya's and Erik's posts (to which I link) do a good job of showing that umpires actually do precisely what the analogy-endorses do not want judges to do. They consider policy goals, and unwritten customs, and the "spirit" of the rules in deciding that, to use some examples, the second baseman was close enough to the bag in turning that double play, or that this manager is being pretty over-the-top in this argument, but it is a playoff game, so I will be a bit more patient before ejecting him. The analogy does not work precisely because umpires are not as agenda-less, letter-of-the-rule-focused as people assume (and because they cannot be). In other words, umpires actually behave just like judges.

Posted by: Howard Wasserman | Aug 5, 2008 1:17:44 PM

While I obviously agree with you regarding your interpretation of the Warren Court (and in the Nixon-led conservative political reaction to the Warren Court; and in the Legal Process school's academic reaction), Howard's point was that even if Roberts says he is just "umpiring" he is making law just as the Warren Court did (shaping it along his concept of fairness, see e.g. dislike of affirmative action). To say that Roberts and his conservative brethren are apolitical and just "calling balls and strikes" is being disingenuous. Even more one could say that Roberts was being disingenuous for pure political gain -- so that his conservative legal agenda would be more palatable to the lay public.

Posted by: NYesq | Aug 5, 2008 1:07:42 PM

Oh, and for a helpful book onhow the Warren Court saw itself as making up the rules of the game, I recommend Alexander Bickel's book, The Supreme Court and the Idea of Progress (1970).

Posted by: Orin Kerr | Aug 5, 2008 12:28:01 PM

Patrick O'Donnell,

Weren't the Justices of the Warren Court rather proud to be making up the rules of the game? That has been my impression. Remember the favorite question of Chief Justice Warren: "But is it fair?" And remember the favorite rule of Justice Brennan: "You can do anything around here with five votes." And then of course Justice Douglas delighted in using non-legal explanations for his opinions: He thought legal reasoning was silly, and he self-consciously did what struck him as good social policy. Is it really the "epitome of partisan hyperbole" to be honest about that? If so, I think we'll have to agree to disagree.

Posted by: Orin Kerr | Aug 5, 2008 12:21:21 PM

"When Chief Justice Roberts used the umpire analogy, he was making a point about his vision of the role of a judge: the role of a judge should be narrow, rather than broad. In other words, it is a statement of disagreement with the role of a Justice a la the Warren Court."

I disagree. What Roberts was doing was saying what he thought his supporters (actual and potential) on the committee wanted to hear -- in order to provide them with talking points for the floor debate and vote -- in order to ensure his confirmation.

I have no doubt that Roberts wants every bit as much to transform the law of the land as Brennan (or, for that matter, his namesake Owen) did. The difference is, the Brennan was honest about it.

Posted by: Prison Rodeo | Aug 5, 2008 11:57:08 AM

It's odd that the analogy usually gets deployed to describe appellate-court judges, who have months to figure out whether to call a "ball" or "strike". If there are any judges whose work resembles umpiring, it's trial-court judges, who often have to make rulings on the spot.

Posted by: Bruce Boyden | Aug 5, 2008 11:06:49 AM

It seems the link doesn't work, so here's the citation info.:
Strauss, David A., "The Common Law Genius of the Warren Court" (May 2002). University of Chicago, Public Law Research Paper No. 25.
Available at SSRN: http://ssrn.com/abstract=315682 or DOI: 10.2139/ssrn.10.2139/ssrn.315682

Posted by: Patrick S. O'Donnell | Aug 5, 2008 11:02:25 AM

Yet imgination spills over into fantasy if we're to imagine Roberts himself on the order of a "neutral" judge on this construal of the umpire analogy. And it strikes me as the epitome of partisan hyperbole to describe the Warren Court as "making up the rules of the game" (cf. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=315682).

Posted by: Patrick S. O'Donnell | Aug 5, 2008 10:57:35 AM


Perhaps some history sheds light on the meaning of the umpire analogy.

There as a time, around 40 years ago, when there were a lot of judges who saw themselves as makers of the rules of society rather than followers of them. They would come up with ideas for areas of law to transform, and then they would go out and do it, shaping the law of the land to their liking. The judges became a very important part of the daily life of American citizens, so much that some Presidential candidates ran against them to be elected as much as their opponents. Because they saw themselves as rulemakers, the judges were major sources of social and legal change -- probably as much if not more as the elected branches of their day.

Those who endorse the judge/umpire analogy are saying that they reject this role of a judge. That is, they are rejecting the vision of the Warren Court judge: to them, the Warren Court judge is clearly not an umpire, but rather is making up the rules of the game. I'm reminded of the reference in the Brethren tp the effect that Justice Brennan used to say Justice Harlan was the only "real judge" on the Warren Court. The point of the story, as I always took it, was that only Harlan was umpiring as a a neutral: the rest were trying to move the law in ways that they liked. When Chief Justice Roberts used the umpire analogy, he was making a point about his vision of the role of a judge: the role of a judge should be narrow, rather than broad. In other words, it is a statement of disagreement with the role of a Justice a la the Warren Court.

For that reason, the umpire analogy is not worthless at all: Rather, it situates Roberts on perhaps the most important fault lines of 20th century constitutional law. You can certainly disagree with Roberts and argue that he is on the wrong side of the line, but I don't think it means that is statement is worthless.

Posted by: Orin Kerr | Aug 5, 2008 10:05:37 AM

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