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Wednesday, July 20, 2011

The Umpire Analogy Revisited

My recent post on Chief Justice Roberts predictably ignited another flame war on his umpire analogy.  Orin Kerr writes in a comment that “no actual judges” believe in the extreme version of formalism in the sense of mechanical jurisprudence, that is, law as a system of rules and logic where the identity of the judge is irrelevant.  Orin also says that realists like myself unfairly impute a belief in mechanical jurisprudence to judges.

Stated as a proposition about what judges actually believe, nobody thinks that judges actually believe in mechanical jurisprudence.  Nor does anybody else really believe it, since Americans have known since the Midnight Judges Act that different judges with different political inclinations will give predictably different results.  Rather, the point is that judges spend a lot of time pretending and espousing a theory of mechanical jurisprudence in which their decisions are dictated by logic and doctrine and nothing else.  And the umpire analogy is a part of that pretense.

Saying that judges basically engage in a noble lie--one that fails miserably at that--drives various people crazy.  So a great deal of effort is made to show that the umpire analogy does not actually say that judicial decisions are completely rule-bound, because umpires exercise some amount of discretion in calling strikes and balls.  And it is possible to twist the analogy to suggest a robust judicial role where the identity of the judge actually matters.  But lets get real.  In the context of a Senate Judiciary Committee hearing, and given our modern rhetoric about the role of judges, is there any doubt about what Roberts knew his audience would take from the comment?  And is there any doubt about why the umpire analogy has immediately entered the vernacular?

Posted by Tun-Jen Chiang on July 20, 2011 at 06:58 PM | Permalink


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"As I read/listen to their confirmation hearings"

I reckon given your role as Special Counsel for Supreme Court Nominations, you should know a bit about Sotomayor's testimony either way.

"liberals" and conservatives" at the end of my last comment should be switched.

Posted by: Joe | Jul 21, 2011 9:31:05 PM

We can find stuff Sotomayor or Kagan said that was less "mechanical" too. Sotomayor had to compensate for all those "wise Latina" comments people were making. Some senators tried to show that conservatives don't seem purely neutral either. But, the attack on Sotomayor was more strident and consistent and there is an overall frame (sadly successful too often) that liberals are particularly concerned merely with policy ends than the law itself. So, she had to lay it on a bit thick.

Prof. Bernstein, who wrote a book on the case, also must have found that Lochner comment "interesting." Roberts used a patently easy target there and said they didn't really interpret the law there. They weren't "interpreting the law" as compared to I assume Brown v. Bd. That's b.s. In BOTH cases, certain assumptions were involved that affected their ruling. He was playacting there. And, he provided an overly simplistic statement on what the ruling actually held.

Along with the "umpire" metaphor, especially given the usual line that liberals more than conservatives just apply the law, pointing to "interesting" things Sotomayor said is charming. But, it doesn't change what the soon to be CHIEF JUSTICE did.

Posted by: Joe | Jul 21, 2011 9:22:14 PM


I was using figure skating as an example because it is easier for everyone to understand how the analogy can be twisted. But the same would apply to baseball. Every player knows that umpires bend their decisions in favor of star players and the home team (the effect has been empirically demonstrated). So then you can argue that when Roberts was drawing the analogy to umpires calling balls and strikes, what he really means is that judges will rule based on illegitimate considerations like the local-ness of a litigant. In context, however, nobody thinks that is what he meant. But that only shows my original point, which is that in the context of a Senate Judiciary Committee hearing, the meaning of the umpire analogy is plain as day.

Posted by: TJ | Jul 21, 2011 3:12:55 PM

TJ, I think you are conflating the limits of a possible analogy to "judging" in sports more generally with what Roberts actually said. I understood your original post to be more about Roberts and not the outer limits of an analogy that Roberts didn't make (apologies if I misunderstood you). You are of course correct that there are sports in which judging is understood to contain a political dimension. Baseball is not one of those sports. And there isn't really any question that Roberts was talking specifically about umpiring in baseball, not judging in figure skating (which is not called umpiring), refereeing in soccer, or any other sport unlikely to be understood readily by the American television audience. Consider that Roberts in his opening remarks made the following statement: "And I will remember that it's my job to call balls and strikes and not to pitch or bat." Hard to read that as drawing an analogy to the way "judging" works in sports other than baseball. This is not to say that one cannot fairly think about extending the analogy and what such extensions might mean culturally for lawyers. It just means it is not fair to attribute those extensions to Roberts.

Posted by: anon | Jul 21, 2011 11:39:27 AM

I do not think Chief Justice Roberts meant to offend. I see that umpiring is an almost perfect analogy simply because you have different perspectives, like angles, of the same case in facts or ballgame. Also, I think it makes enough sense to say, regardless of your position as judge, formalist or realist, the one that works for you is the one you use when listening to the case. That alone already has a shadow of realism because the "choice" or "preference" on what their job really entails is their "perspective", an extra-legal concept, on what they should be doing. Did I explain that well enough?

Posted by: Chrystina | Jul 21, 2011 9:14:00 AM

Oh, I certainly don't mean to say the CJ Roberts is exceptional in this regard.

Posted by: TJ | Jul 21, 2011 2:02:59 AM


As I read/listen to their confirmation hearings, the Justice who offered a vision of legal decisionmaking as "mechanical jurisprudence" was Justice Sotomayor, not Chief Justice Roberts. Consider the exchange Roberts had with Senator Hatch on deciding hard cases: HATCH: You've explained that it's not the duty of the judiciary to make the law or to execute it, but to interpret it. Now, I'm not naive. Sometimes interpretation is more of an art than a science. There are those who would label interpretation absolutely anything a judge might do or, two, the text of a statute or the Constitution. But it seems to me there comes a point where a judge is using his own creativity and purpose and crosses the line between interpreting a text written by somebody else and in a sense creating something new. Now, that troubles me since, as I said earlier, I believe in the separation of powers. If a judge crosses the line between interpreting and making the law, he has crossed the line supporting his legitimate authority from the legislative branch's authority. Now, to me that's a very serious matter if we believe, as America's founders, did that the separation of powers -- not just in theory or in textbook but in practice in the actual functioning of government -- is the linchpin of limited government and liberty. How do you distinguish between these two roles of interpreting and making law? And can you assure the Senate and the American people that you will stay on your side of this line?

ROBERTS: I will certainly make every effort to do so, Senator. I appreciate the point that in some cases the question of whether you're interpreting the law or making the law -- that that line is hard to draw in some cases. I would say not in most cases. I think in most cases, most judges know what it means to interpret the law and can recognize when they're going too far into an area of making law. But certainly there are harder cases. And someone like Justice Harlan always used to explain that when you get to those hard cases you do need to focus again on the question of legitimacy and make sure that this is the question that you the judge are supposed to be deciding rather than someone else. You go to a case like the Lochner case, you can read that opinion today and it's quite clear that they're not interpreting the law, they're making the law. The judgment is right there. They say, We don't think it's too much for a baker to work -- whatever it was -- 13 hours as day. We think the legislature made a mistake in saying they should regulate this for their health. We don't think it hurts their health at all. That's right there in the opinion. You can look at that and see that they are substituting their judgment on a policy matter for what the legislature had said.

So the fact that it's difficult to draw the line doesn't relieve a judge of an obligation to draw the line. There are those more academic theorists who say, It's a question of degree. And since it's just a question of degree you shouldn't try to draw the line because it's hard sometimes to interpret the law without making the law. We should throw our hands up and say, 'Well, judges make the law,' and proceed from that. That has not been my experience either as a judge or an advocate. My experience has been, in most cases you can see where the line is and you do know when judges are exceeding their authority and making the law rather than interpreting it. And careful judges are always vigilant to make sure that they're adhering to their proper function and not going into the legislative area.
It's interesting to compare that with the more mechanical way Justice Sotomayor presented legal decisionmaking in her hearing. There are lots of examples, but the one she had with Senator Kyl on her view of "empathy" in legal decisionmaking is worth flagging: KYL: Let me ask you about what the president said -- and I talked about it in my opening statement -- whether you agree with him. He used two different analogies. He talked once about the 25 miles -- the first 25 miles of a 26-mile marathon. And then he also said, in 95 percent of the cases, the law will give you the answer, and the last 5 percent legal process will not lead you to the rule of decision. The critical ingredient in those cases is supplied by what is in the judge's heart. Do you agree with him that the law only takes you the first 25 miles of the marathon and that that last mile has to be decided by what's in the judge's heart?

SOTOMAYOR: No, sir. That's -- I don't -- I wouldn't approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases. It's the law. The judge applies the law to the facts before that judge.

KYL: Appreciate that. And has it been your experience that every case, no matter how tenuous it's been and every lawyer, no matter how good their quality of advocacy, that in every case, every lawyer has had a legal argument of some quality it make? Some precedent that he's cited? It might not be the Supreme Court. It might not be the court of appeals. It might be a trial court somewhere. It might not even be a court precedent. It may be a law review article or something. But have you ever been in a situation where a lawyer said I don't have any legal argument to me, Judge, please go with your heart on this or your gut?

SOTOMAYOR: Well, I've actually had lawyers say something very similar to that. (LAUGHTER) I've had lawyers where questions have been raised about the legal basis of their argument. I thought one lawyer who put up his hands and said, but it's just not right. (LAUGHTER) But it's just not right is not what judges consider. What judges consider is what the law. says.

KYL: You've always been able to find a legal basis for every decision that you've rendered as a judge?

SOTOMAYOR: Well, to the extent that every legal decision has -- it's what I do in approaching legal questions is, I look at the law that's being cited. I look at how precedent informs it. I try to determine what those principles are of precedent to apply to the facts in the case before me and then do that. And so one -- that is a process. You use...

KYL: Right. And -- and all I'm asking -- this is not a trick question.

SOTOMAYOR: No, I wasn't...

KYL: I can't imagine that the answer would be otherwise than, yes, you've always found some legal basis for ruling one way or the other, some precedent, some reading of a statute, the Constitution or whatever it might be. You haven't ever had to throw up your arms and say, "I can't find any legal basis for this opinion, so I'm going to base it on some other factor"?

SOTOMAYOR: It's -- when you say -- use the words "some legal basis," it suggests that a judge is coming to the process by saying, "I think the result should be here, and so I'm going to use something to get there."

KYL: No, I'm not trying to infer that any of your decisions have been incorrect or that you've used an inappropriate basis. I'm simply confirming what you first said in response to my question about the president, that, in every case, the judge is able to find a basis in law for deciding the case. Sometimes there aren't cases directly on point. That's true. Sometimes it may not be a case from your circuit. Sometimes it may be somewhat tenuous and you may have to rely upon authority, like scholarly opinions and law reviews or whatever.

But my question is really very simple to you: Have you always been able to have a legal basis for the decisions that you have rendered and not have to rely upon some extra-legal concept, such as empathy or some other concept other than a legal interpretation or precedent?

SOTOMAYOR: Exactly, sir. We apply law to facts. We don't apply feelings to facts.

Posted by: Orin Kerr | Jul 21, 2011 1:58:39 AM


One can interpret the umpire analogy to reach just about any result. For example, if I want to say that the umpire analogy actually means that Roberts is saying that judges political values matter, I can point to the fact that everybody knows that Olympic figure skating judges give higher points to athletes from their own country. We'll just have to agree to disagree whether your understanding of the meaning of the remark is the most plausible one given the context in which it was given. Roberts was speaking to the Senate Judiciary Committee, not the National Association of Baseball Players.

Posted by: TJ | Jul 21, 2011 12:24:04 AM

I think you don't understand umpiring. One doesn't have to twist the analogy to arrive at an interpretation in which the individual umpire matters; that is the analogy. Anyone who follows baseball knows that different umpires have different strike zones. Who the umpire is on a given night matters. The point is that each umpire is trying in good faith to apply the neutral, but difficult to apply, concept of a strike zone, just as judges are allegedly each in good faith (i.e., not based on policy preferences) trying to apply the law.

Moreover, since those who follow baseball would correctly understand Roberts, I am not sure what there is to "get real" about. Sure, some people who aren't familiar with baseball might have thought he was arguing that what judges do is mechanistic. But that could cut either way. Fans of empathy might view this as a bad thing; strict constructionists might view it as a good thing. Those who understand baseball, on the other hand, might have correctly understood where they did not before the role that discretion is not inconsistent with a good faith effort to apply the law.

Posted by: anon | Jul 20, 2011 11:23:12 PM

As I recall the analogy the Chief used at his confirmation hearing, his point was broader than judging is like umpiring -- an objective art. He also added words to the effect of, "Judges are like umpires. No one comes to the game to watch him do his work." In that sense, the analogy is also an appeal to judicial minimalism. It urges judges not to take a leading, "activist" (whatever that means) role in society and instead to follow the lead of the coordinate branches. In the umpiring analogy, the judges tell the coordinate branches if their actions are fair or foul, but the attention should remain on them, not the judges.

Posted by: Sean M. | Jul 20, 2011 8:30:51 PM

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