[Orin Kerr, August 2, 2008 at 1:41pm] Trackbacks
Justice Jackson and the Umpire Analogy:
As Ilya's post suggests, then-Judge John Roberts was not the first to compare the role of a judge to the role of baseball umpire. Indeed, the comparison probably goes back to the invention of baseball, and at the very least has been around for many decades. I'm reminded of one notable usage, Justice Jackson's description in 1951 of how Second Circuit judges Learned and Gus Hand approached the job of deciding cases:
[Learned and Augustus Hand] have represented an independent and intellectually honest judiciary at its best. And the test of an independent judiciary is a simple one—the one you would apply in choosing an umpire for a baseball game. What do you ask of him? You do not ask that he shall never make a mistake or always agree with you, or always support the home team. You want an umpire who calls them as he sees them. And that is what the profession has admired in the Hands.

Related Posts (on one page):

  1. Of Umpires and Judges:
  2. Roberts on the Umpire Analogy.—
  3. Justice Jackson and the Umpire Analogy:
  4. Judge Jerry E. Smith and the Origins of the Judge-Umpire Analogy:
Richard A. (mail):
As a baseball fan, I have to say that one thing I like about the sport is the lack of opporunity for the equivalent of judicial activism. A key flaw of such sports as basketball is that the ref has so many discretionary calls, e.g. the typical foul call. As the example of crooked ref Tim Donaghy shows, the referee can control the flow of the game.

The baseball ump is faced with simple yes-or-no calls that must be made. The only discretionary call is the balk and perhaps leaving the base path. If someone could figure out a way to impose this system on the court games, the NBA would be a lot less boring. That foul-shooting parade at the end of every game is good only for preparing you for a good night's sleep.
8.2.2008 3:01pm
Just Dropping By (mail):
Counterpoint:

First, the judge must cease to be merely an umpire at the game of litigation.

Young v. Corrigan, 208 F. 431, 437 (N.D. Ohio 1912) (quoting Wigmore on Evidence § 21).


No well considered authority has ever stated that the trial judge is a mere moderator or umpire between the contending parties.

People v. Lurie, 115 N.E. 130, 133 (Ill. 1917).


A trial is not a mere lutte between counsel, in which the judge sits merely as an umpire to decide disputes which may arise between them.

State v. Crittenden, 38 La. Ann. 448, 450-51 (La. 1886) (This also seems to be the earliest use of "umpire" in the sporting sense in a published legal decision -- "lutte" is French for wrestling.)
8.2.2008 3:30pm
LM (mail):

The only discretionary call is the balk and perhaps leaving the base path.

Ejections, rainouts.
8.2.2008 5:47pm
David M. Nieporent (www):
Just Dropping By: The Crittenden cite is saying something different, though. It's saying that a judge need not be passive in conducting a trial; he can, e.g., make evidentiary rulings sua sponte, without waiting for an objection, and he can even ask questions of witnesses if he wants.

It's not saying that a judge can devise his own laws.
8.2.2008 7:53pm